What was the outcome of Tenancy Tribunal case 4948613?

The tribunal order states: The Bond Centre is to pay the bond of $2,720.00 (6060235-020) to Heather

How much money was awarded in case 4948613?

Cleaning: $45.00 awarded to landlord; Property Damage: $200.00 awarded to tenant; Property Damage: $363.12 awarded to landlord; Rent Arrears: $3,400.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Painting: $500.00 awarded to landlord; Replace furnishings: Garage door rem…: $188.60 awarded to landlord

What type of tenancy dispute was case 4948613?

The primary dispute was Rent arrears. Related themes: Property damage, Cleanliness.

Where can I read the official tribunal order for case 4948613?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12241104-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4948613?

The tribunal order states: The Bond Centre is to pay the bond of $2,720.00 (6060235-020) to Heather

How much money was awarded in case 4948613?

Cleaning: $45.00 awarded to landlord; Property Damage: $200.00 awarded to tenant; Property Damage: $363.12 awarded to landlord; Rent Arrears: $3,400.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Painting: $500.00 awarded to landlord; Replace furnishings: Garage door rem…: $188.60 awarded to landlord

What type of tenancy dispute was case 4948613?

The primary dispute was Rent arrears. Related themes: Property damage, Cleanliness.

Where can I read the official tribunal order for case 4948613?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12241104-Tribunal_Order.pdf.

56 Seamount Drive, Red Beach, Red Beach 0932 Tenancy Tribunal Case 4948613 — Rent arrears

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56 Seamount Drive, Red Beach, Red Beach 0932 Tenancy Tribunal Case 4948613 — Rent arrears | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4948613 — net $2,076.72 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 03/07/24	$3,400.00		Rent arrears to 03/07/24
Repairs: Flooring (insurance excess	$500.00		Repairs: Flooring (insurance excess
Replace furnishings: Garage door remotes	$188.60		Replace furnishings: Garage door remotes
Cleaning: Curtains	$45.00		Cleaning: Curtains
Lock/key replacement	$363.12		Lock/key replacement
Repairs: Painting	$500.00		Repairs: Painting
Exemplary damages: Failure to maintain - sliding door		$200.00	Failure to maintain - sliding door
Total award	$4,996.72	$200.00
Net award	$2,076.72
Total payable by Tenant to Landlord	$2,076.72

Claims and awards for application 4948613 — net $2,076.72 NZD. Verify on MoJ.

Rent arrears to 03/07/24

Amount: $3,400.00
Awarded to: Landlord
Reason: Rent arrears to 03/07/24

Repairs: Flooring (insurance excess

Amount: $500.00
Awarded to: Landlord
Reason: Repairs: Flooring (insurance excess

Replace furnishings: Garage door remotes

Amount: $188.60
Awarded to: Landlord
Reason: Replace furnishings: Garage door remotes

Cleaning: Curtains

Amount: $45.00
Awarded to: Landlord
Reason: Cleaning: Curtains

Lock/key replacement

Amount: $363.12
Awarded to: Landlord
Reason: Lock/key replacement

Dismissed claims

Compensation — The tenant said the main reason she moved out was because of a disagreement between the parties concerning an insurance claim made by the landlord. The tenant…
Property Damage — Did the landlord enter the property unlawfully?

Claim types — money lines allowed on this order

Cleanliness Exemplary damages Property damage Rent arrears Compensation

Order

The Bond Centre is to pay the bond of $2,720.00 (6060235-020) to Heather Edwards immediately.
Rachel Eva Peterson must pay Heather Edwards $2,076.72 immediately, calculated as shown in table below:

Reasons

Introduction

Ms Peterson (the tenant) is a full-time wheelchair user. For more than five years, the tenant lived in a three-bedroom, single level home at 56 Seamount Drive (the premises) owned by Ms Edwards (the landlord). The premises had level entries and an accessible ensuite bathroom designed for individuals with mobility limitations.
When the tenancy came to an end in July 2024, the tenant and landlord could not agree to whom the bond should be refunded. The tenant claims the landlord owes the tenant compensation and exemplary damages. In a counterclaim, the landlord says the tenant owes the landlord rent arrears and compensation for damage caused during the tenancy and cleaning costs.
At the hearing, the parties confirmed the following: a. The tenant no longer pursues claims for: i. Compensation of $250 for fixing a heat pump and purchasing a heater; ii. Exemplary damages for failure to maintain a toilet seat; iii. Exemplary damages for failure to ensure the tenancy agreement was in writing; and iv. Exemplary damages for failure to give receipt for rent. b. The tenant accepts the landlord’s claims for: i. Compensation of $500 (being the insurance excess) for damage to timber flooring; ii. Compensation of $188.60 to replace garage door remotes; and iii. Compensation of $45.00 for cleaning curtains. c. The landlord no longer pursues compensation of $450 for the cost of having a plumber inspect the premises for leaks.
Accordingly, I dismiss the claims not pursued by either party. By consent, I make orders as per 3.b. above.
The remaining issues for me to determine are: a. Did the landlord breach their obligations such that the tenant is entitled to compensation for their moving costs? b. Did the landlord fail to maintain the sliding door from the lounge? c. Did the landlord fail to maintain the ensuite bathroom toilet? d. Did the landlord enter the property unlawfully? e. Does the tenant owe the landlord rent arrears? f. Did the tenant fail to return the keys at the end of the tenancy? g. Did the tenant cause damage to interior walls, and if so, is she liable for the cost of repairs? h. Did the tenant cause damage to a vacuum cleaner and exterior drains, and if so, is she liable for the cost of repairs? i. Did the tenant fail to leave the windows reasonably clean? j. Did the tenant fail to leave the premises reasonably clean? k. Should either party be reimbursed the Tribunal application fee? l. Should the Tribunal suppress either parties’ names? The Tribunal’s approach to the issues
The relevant law that applies is found in the Residential Tenancies Act 1986 (“the Act”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards. That includes a requirement that the party bringing the claim establish their claim “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fraction more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence. Did the landlord breach their obligations such that the tenant is entitled to compensation for their moving costs?
The tenant seeks compensation of $10,213.40 being costs she incurred moving out of the premises. The moving costs included the cost of a moving truck and transport, an exit clean of the premises and garden work. The claim includes compensation for $2,600 the tenant paid as bond for a new rental property, and $2,600 the tenant paid in rent in advance for the new rental property.
The tenant says the landlord is liable to pay those “moving costs” because the tenant should not have had to move out of the premises.
The tenant’s claim for compensation is dismissed. The tenant said the main reason she moved out was because of a disagreement between the parties concerning an insurance claim made by the landlord. The tenant did not identify any breach of the landlord’s obligations under the Act, or pursuant to the tenancy agreement, in support of her claim for compensation. The tenant confirmed the tenancy came to an end on 3 July 2024 by agreement between the parties.
The tenant’s claim for compensation is dismissed.

Did the landlord fail to maintain the sliding door from the lounge?

Rachel Eva Peterson claims that the landlord breached their obligations under section 45 of the Act in that the sliding door from the lounge to the exterior could not be opened for several months.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair. Breaching that obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A of the Act.
The tenant says the sliding door became more and more difficult to operate, and in the end only her male carer could open the door. The tenants says the sliding door from the lounge was unusable for around four months in 2023.
The landlord accepts that the sliding door was not working properly for approximately four months during the tenancy. The landlord says it was working, but accepts it did not open easily, and was not workable for the tenant who is in a wheelchair. The landlord said there was a delay in getting the door fixed in 2023 due to personal issues and she says she did “drop the ball.”
I find the landlord committed an unlawful act. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
The landlord did not prioritise fixing the sliding door and this had an impact on the tenant who could not easily open the door and was forced to use other doors to access the back yard. Overall, however, the impact on the tenant was not significant as there were other doors she could use. Taking these factors into account I consider a nominal award of $200 in exemplary damages is appropriate to recognise the inconvenience the landlord’s failure to maintain the sliding door caused the tenant.

Did the landlord fail to maintain the ensuite bathroom toilet?

Rachel Eva Peterson claims that the landlord breached their obligations under section 45 of the Act in that the toilet in the ensuite bathroom did not flush properly for three months during the tenancy.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair. Breaching that obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A of the Act.
The tenant says she had to manually flush the toilet in her ensuite bathroom using a bucket. The landlord says the issue was raised with her in September 2023 and fixed by December 2023. The landlord says it took longer than usual to fix due to the toilet or flushing mechanism having an unusual design. The landlord referred to text messages where she kept the tenant up to date. The landlord also says there was another accessible toilet in the home which was flushing without issue while the repairs of the ensuite were being arranged.
I find the landlord did not commit an unlawful act. Once made aware that the toilet required maintenance, the landlord took action to remedy it as soon as possible. The landlord kept the tenant updated on progress and there was another fully functional accessible toilet in the premises.
The tenant’s claim for exemplary damages for failure to maintain the ensuite toilet is dismissed.

Did the landlord enter the property unlawfully?

Rachel Eva Peterson claims the landlord entered the premises without consent or notice on 15 February 2023 and 9 June 2024.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) of the Act.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A of the Act. a. Did the landlord enter unlawfully on 15 February 2023?
The tenant says on 15 February 2023, the landlord came onto the property three times during the early afternoon without her consent. The tenant said the landlord was holding a screwdriver and appeared to be checking the exterior air conditioning unit.
The landlord admits she did come onto the property twice to check the air conditioning unit. She says she came once, but found she had the wrong screwdriver, so left and returned a short time later. The landlord says she believed she was entitled to enter without giving the tenant notice as she did not enter the interior of the house at all.
The landlord does not have a right to enter onto the premises except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. That applies to the interior and exterior of the premises. Given that, I find the landlord committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) of the Act.
I am not satisfied it would be just to award exemplary damages. Other than minor inconvenience, the tenant was not impacted by the landlord’s intrusion onto the property, which was brief. I therefore dismiss the claim for exemplary damages for unlawful entry on 15 February 2023. b. Did the landlord enter unlawfully on 9 June 2024?
The tenant says on 9 June 2024 at approximately 3pm she was being interviewed by Scott Herschberger for a position in his company. Mr Herschberger was seated in her lounge when the landlord knocked on the door.
The tenant says she called out to the landlord to ask her to wait, but before the tenant could transfer from the couch into her wheelchair, the landlord entered the front door. The tenant says they had arranged to have a meeting that day, but the landlord arrived 15-30 minutes earlier than planned. The tenant says the landlord then questioned Mr Herschberger as to why he was there and asked him to leave. The tenant said it was embarrassing.
The landlord confirmed she entered the premises without waiting for the tenant to open the door. She said it was usual procedure for her to knock and then let herself in and she says she did not hear the tenant call out for her to wait. The landlord says she was not early to their arranged meeting but instead was 15 minutes late. The landlord said she did not know who the man was in the lounge and her natural reaction was to ask him to leave.
I accept that, at that time, the parties had a friendly relationship and it would not be unusual for the landlord to open the front door after knocking rather than wait for the tenant to open it for her. However, on this occasion, the tenant was in the midst of an interview and explicitly asked the landlord to wait. The landlord’s failure to do so meant she did not have the tenant’s consent to enter the premises. Given that, I find the landlord committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) of the Act.
I am not satisfied it would be just to award exemplary damages. While I accept that, given the circumstances of that occasion, the landlord’s unlawful entry caused the tenant embarrassment, the incident was brief. Given a more casual approach to entries had been acceptable on previous occasions, I accept the landlord did not intend to cause the tenant embarrassment or disrupt the interview. I therefore dismiss the claim for exemplary damages for unlawful entry on 9 June 2024.

Does the tenant owe the landlord rent arrears?

The landlord provided rent records which show that, at the end of the tenancy, the tenant owed $3,400 in rent arrears. The rent records are not in the usual format, in that, they do not clearly show on which weeks the rent arrears accrued. However, the landlord says a review of the tenant’s own bank records shows rent was not paid on 1/08/19, 26/09/19, 31/12/20, 20/06/24 and 27/06/24. That equates to 5 weeks rent, which at $680 per week, is $3,400.
The tenant says she did not miss any rent payments and says she paid two weeks rent in advance at the start of the tenancy. The tenant also says she paid in cash on one occasion but could not say when that was or produce any receipt or other written record.
I am satisfied the landlord has provided records which show the tenant owed $3,400 in rent at the end of the tenancy. The tenant has not demonstrated any inaccuracy in the rent records, and I accept that the tenant’s bank records indicate rent was not paid on at least five occasions when it fell due.
Accordingly, an order that the tenant pay rent arrears of $3,400 is made.

Did the tenant fail to return the keys at the end of the tenancy?

At the end of the tenancy the tenant must return all keys and security devices. See section 40(1)(e)(iv) of the Act.
The landlord says the tenant failed to return two keys, one for the front door and one for the back door. The landlord says the tenant did leave the two swipe cards for the front door, but they did not work. The landlord produced an invoice for the cost of replacing the front door and back door keys and swipe cards for $363.12.
The tenant says the keys and swipe card were all left in a basket and produced a photograph taken on 2 July 2024 at 5:09pm (the day before the last day of the tenancy). The photograph shows the two swipe cards. It does not show the keys. The tenant says they are not visible but were under the items in the basket.
I am satisfied it is more likely than not that the tenant did not return the keys. The photograph produced by the tenant does not show the keys were left with the swipe cards. Did the tenant cause damage to interior walls, and if so, is she liable for the cost of repairs?
A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B of the Act.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) of the Act.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) of the Act. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) of the Act.
I am satisfied the landlord has proved the tenant caused damage to the interior walls and some door frames, most likely by contact with the tenant’s wheelchair. Photographs taken by the landlord on 10 July 2024 show black marks on the skirting and walls which are consistent with contact with the tenant’s wheelchair. Damage to the gib, such as on or near the door frame of the front door is also consistent with contact with the tenant’s wheelchair.
The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. The tenant produced her own photos and a video taken on 2 July 2024. The photographs and video produced by the tenant do not show close up of the particular areas, such as the door frame by the front door, or the skirting boards.
The tenant says those areas were not damaged on 2 July 2024. The tenant says any damage shown in photographs taken by the landlord on 10 July 2024 was not caused by her. I reject the suggestion the damage was caused in between those dates. The marks on the skirting and walls are consistent with damage caused by a wheelchair and I consider it is more likely they were caused – either carelessly or accidentally – by the tenant during the tenancy.
While I am satisfied the landlord has proved the tenant caused the damage, and it is not fair wear and tear, the landlord has not proved that any insurance moneys are irrecoverable. No evidence was produced of an insurance claim being made in relation to repairs for the damaged walls. The insurance policy which was produced (in relation to the claim for damaged timber flooring) records that the landlord’s excess for tenant damage is $500.
Given that is the excess under the landlord’s insurance, I make an award that the tenant pay the landlord $500 towards the cost of repairing the damage to the interior walls. Did the tenant cause damage to a vacuum cleaner and exterior drains, and if so, is she liable for the cost of repairs?
A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. See sections 40(2)(a), 41 and 49B of the Act.
The landlord did not produce any evidence to prove any damage was caused to the vacuum cleaner.
The landlord did not produce any evidence to prove any damage was caused to the gutters and/or exterior drains at the property.
I dismiss the landlord’s claim for compensation for damage to both.

Did the tenant fail to leave the windows reasonably clean?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy. See section 40(1)(e)(iii) of the Act.
The landlord says the tenant did not leave the windows clean. The landlord says the windows were cleaned at a cost of $200, and produced an invoice for that amount.
The landlord did not produce any photographs or other records to show the windows were not left reasonably clean. Without such evidence, I am unable to assess whether the tenant breached their obligations under section 40(1)(e)(iii) of the Act.
The landlord has not proved their claim and I dismiss the claim for window cleaning.

Did the tenant fail to leave the premises reasonably clean?

As stated above, at the end of the tenancy the tenant must leave the premises reasonably clean and tidy. The landlord says the tenant did not leave the interior of the premises “reasonably clean” and says it took Ms Baczea three days to clean the premises. An invoice for $800 for an “exit clean” was produced.
The tenant says the premises was cleaned every week by commercial cleaners and before she moved out, her and her daughter did an exit clean. The tenant produced photos and a video taken on 2 July 2024.
I note that a tenant is not required to leave a property in an immaculate standard of cleanliness. The standard is what an average, reasonable bystander would consider “reasonably clean” and “reasonably tidy”. A professional cleaner is likely to bring a property to a standard that is higher than “reasonably clean” and “reasonably tidy.”
The landlord has not produced evidence to show the areas of the house they say were not left “reasonably clean.” At the hearing, the landlord referred to marks on the garage floor. Photographs of those areas were referred to. I am satisfied they show wear and tear from normal use of a garage. One photograph referred to by the landlord showed paint dust had been left on a skirting board following repairs by the tenant, but I am not satisfied that is sufficient to show “more or less every room” of the house needed cleaning, as stated by Ms Baczea.
The landlord has not proved their claim and I dismiss the claim for compensation for exit cleaning.

Should either party be reimbursed the application fee?

As neither party has substantially succeeded with their claim, neither party is entitled to reimbursement of their filing fee. Should the Tribunal suppress either party’s name?
Both parties sought suppression of their name, however, neither party was wholly or substantially successful in their claims.
I have considered whether I should grant name suppression order for either party having regard to the interests of the parties and public interest under section 95A(4) of the Act.
I am mindful that open justice is a fundamental principle in our legal system.
The parties’ applications for suppression are declined for the following reasons: a. It is common for parties appearing before the Tribunal to seek suppression orders. But that is not of itself a sufficient reason to make the order. b. The disputes before me are not unusual or other than the ordinary business of the Tribunal. c. The open justice principle requires the outcome of adjudication to be available to the public; and d. Weighing up the interests of the tenant and the public interest, the public interest outweighs the tenant’s interests.
Accordingly, no order is made for suppression of either of the parties names.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4948613 — net $2,076.72 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 03/07/24	$3,400.00		Rent arrears to 03/07/24
Repairs: Flooring (insurance excess	$500.00		Repairs: Flooring (insurance excess
Replace furnishings: Garage door remotes	$188.60		Replace furnishings: Garage door remotes
Cleaning: Curtains	$45.00		Cleaning: Curtains
Lock/key replacement	$363.12		Lock/key replacement
Repairs: Painting	$500.00		Repairs: Painting
Exemplary damages: Failure to maintain - sliding door		$200.00	Failure to maintain - sliding door
Total award	$4,996.72	$200.00
Net award	$2,076.72
Total payable by Tenant to Landlord	$2,076.72

Claims and awards for application 4948613 — net $2,076.72 NZD. Verify on MoJ.

Rent arrears to 03/07/24

Amount: $3,400.00
Awarded to: Landlord
Reason: Rent arrears to 03/07/24

Repairs: Flooring (insurance excess

Amount: $500.00
Awarded to: Landlord
Reason: Repairs: Flooring (insurance excess

Replace furnishings: Garage door remotes

Amount: $188.60
Awarded to: Landlord
Reason: Replace furnishings: Garage door remotes

Cleaning: Curtains

Amount: $45.00
Awarded to: Landlord
Reason: Cleaning: Curtains

Lock/key replacement

Amount: $363.12
Awarded to: Landlord
Reason: Lock/key replacement

Dismissed claims

Compensation — The tenant said the main reason she moved out was because of a disagreement between the parties concerning an insurance claim made by the landlord. The tenant…
Property Damage — Did the landlord enter the property unlawfully?

Claim types — money lines allowed on this order

Cleanliness Exemplary damages Property damage Rent arrears Compensation

Order

The Bond Centre is to pay the bond of $2,720.00 (6060235-020) to Heather Edwards immediately.
Rachel Eva Peterson must pay Heather Edwards $2,076.72 immediately, calculated as shown in table below:

Reasons

Introduction

Ms Peterson (the tenant) is a full-time wheelchair user. For more than five years, the tenant lived in a three-bedroom, single level home at 56 Seamount Drive (the premises) owned by Ms Edwards (the landlord). The premises had level entries and an accessible ensuite bathroom designed for individuals with mobility limitations.
When the tenancy came to an end in July 2024, the tenant and landlord could not agree to whom the bond should be refunded. The tenant claims the landlord owes the tenant compensation and exemplary damages. In a counterclaim, the landlord says the tenant owes the landlord rent arrears and compensation for damage caused during the tenancy and cleaning costs.
At the hearing, the parties confirmed the following: a. The tenant no longer pursues claims for: i. Compensation of $250 for fixing a heat pump and purchasing a heater; ii. Exemplary damages for failure to maintain a toilet seat; iii. Exemplary damages for failure to ensure the tenancy agreement was in writing; and iv. Exemplary damages for failure to give receipt for rent. b. The tenant accepts the landlord’s claims for: i. Compensation of $500 (being the insurance excess) for damage to timber flooring; ii. Compensation of $188.60 to replace garage door remotes; and iii. Compensation of $45.00 for cleaning curtains. c. The landlord no longer pursues compensation of $450 for the cost of having a plumber inspect the premises for leaks.
Accordingly, I dismiss the claims not pursued by either party. By consent, I make orders as per 3.b. above.
The remaining issues for me to determine are: a. Did the landlord breach their obligations such that the tenant is entitled to compensation for their moving costs? b. Did the landlord fail to maintain the sliding door from the lounge? c. Did the landlord fail to maintain the ensuite bathroom toilet? d. Did the landlord enter the property unlawfully? e. Does the tenant owe the landlord rent arrears? f. Did the tenant fail to return the keys at the end of the tenancy? g. Did the tenant cause damage to interior walls, and if so, is she liable for the cost of repairs? h. Did the tenant cause damage to a vacuum cleaner and exterior drains, and if so, is she liable for the cost of repairs? i. Did the tenant fail to leave the windows reasonably clean? j. Did the tenant fail to leave the premises reasonably clean? k. Should either party be reimbursed the Tribunal application fee? l. Should the Tribunal suppress either parties’ names? The Tribunal’s approach to the issues
The relevant law that applies is found in the Residential Tenancies Act 1986 (“the Act”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards. That includes a requirement that the party bringing the claim establish their claim “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fraction more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence. Did the landlord breach their obligations such that the tenant is entitled to compensation for their moving costs?
The tenant seeks compensation of $10,213.40 being costs she incurred moving out of the premises. The moving costs included the cost of a moving truck and transport, an exit clean of the premises and garden work. The claim includes compensation for $2,600 the tenant paid as bond for a new rental property, and $2,600 the tenant paid in rent in advance for the new rental property.
The tenant says the landlord is liable to pay those “moving costs” because the tenant should not have had to move out of the premises.
The tenant’s claim for compensation is dismissed. The tenant said the main reason she moved out was because of a disagreement between the parties concerning an insurance claim made by the landlord. The tenant did not identify any breach of the landlord’s obligations under the Act, or pursuant to the tenancy agreement, in support of her claim for compensation. The tenant confirmed the tenancy came to an end on 3 July 2024 by agreement between the parties.
The tenant’s claim for compensation is dismissed.

Did the landlord fail to maintain the sliding door from the lounge?

Rachel Eva Peterson claims that the landlord breached their obligations under section 45 of the Act in that the sliding door from the lounge to the exterior could not be opened for several months.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair. Breaching that obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A of the Act.
The tenant says the sliding door became more and more difficult to operate, and in the end only her male carer could open the door. The tenants says the sliding door from the lounge was unusable for around four months in 2023.
The landlord accepts that the sliding door was not working properly for approximately four months during the tenancy. The landlord says it was working, but accepts it did not open easily, and was not workable for the tenant who is in a wheelchair. The landlord said there was a delay in getting the door fixed in 2023 due to personal issues and she says she did “drop the ball.”
I find the landlord committed an unlawful act. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
The landlord did not prioritise fixing the sliding door and this had an impact on the tenant who could not easily open the door and was forced to use other doors to access the back yard. Overall, however, the impact on the tenant was not significant as there were other doors she could use. Taking these factors into account I consider a nominal award of $200 in exemplary damages is appropriate to recognise the inconvenience the landlord’s failure to maintain the sliding door caused the tenant.

Did the landlord fail to maintain the ensuite bathroom toilet?

Rachel Eva Peterson claims that the landlord breached their obligations under section 45 of the Act in that the toilet in the ensuite bathroom did not flush properly for three months during the tenancy.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair. Breaching that obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A of the Act.
The tenant says she had to manually flush the toilet in her ensuite bathroom using a bucket. The landlord says the issue was raised with her in September 2023 and fixed by December 2023. The landlord says it took longer than usual to fix due to the toilet or flushing mechanism having an unusual design. The landlord referred to text messages where she kept the tenant up to date. The landlord also says there was another accessible toilet in the home which was flushing without issue while the repairs of the ensuite were being arranged.
I find the landlord did not commit an unlawful act. Once made aware that the toilet required maintenance, the landlord took action to remedy it as soon as possible. The landlord kept the tenant updated on progress and there was another fully functional accessible toilet in the premises.
The tenant’s claim for exemplary damages for failure to maintain the ensuite toilet is dismissed.

Did the landlord enter the property unlawfully?

Rachel Eva Peterson claims the landlord entered the premises without consent or notice on 15 February 2023 and 9 June 2024.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) of the Act.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A of the Act. a. Did the landlord enter unlawfully on 15 February 2023?
The tenant says on 15 February 2023, the landlord came onto the property three times during the early afternoon without her consent. The tenant said the landlord was holding a screwdriver and appeared to be checking the exterior air conditioning unit.
The landlord admits she did come onto the property twice to check the air conditioning unit. She says she came once, but found she had the wrong screwdriver, so left and returned a short time later. The landlord says she believed she was entitled to enter without giving the tenant notice as she did not enter the interior of the house at all.
The landlord does not have a right to enter onto the premises except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. That applies to the interior and exterior of the premises. Given that, I find the landlord committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) of the Act.
I am not satisfied it would be just to award exemplary damages. Other than minor inconvenience, the tenant was not impacted by the landlord’s intrusion onto the property, which was brief. I therefore dismiss the claim for exemplary damages for unlawful entry on 15 February 2023. b. Did the landlord enter unlawfully on 9 June 2024?
The tenant says on 9 June 2024 at approximately 3pm she was being interviewed by Scott Herschberger for a position in his company. Mr Herschberger was seated in her lounge when the landlord knocked on the door.
The tenant says she called out to the landlord to ask her to wait, but before the tenant could transfer from the couch into her wheelchair, the landlord entered the front door. The tenant says they had arranged to have a meeting that day, but the landlord arrived 15-30 minutes earlier than planned. The tenant says the landlord then questioned Mr Herschberger as to why he was there and asked him to leave. The tenant said it was embarrassing.
The landlord confirmed she entered the premises without waiting for the tenant to open the door. She said it was usual procedure for her to knock and then let herself in and she says she did not hear the tenant call out for her to wait. The landlord says she was not early to their arranged meeting but instead was 15 minutes late. The landlord said she did not know who the man was in the lounge and her natural reaction was to ask him to leave.
I accept that, at that time, the parties had a friendly relationship and it would not be unusual for the landlord to open the front door after knocking rather than wait for the tenant to open it for her. However, on this occasion, the tenant was in the midst of an interview and explicitly asked the landlord to wait. The landlord’s failure to do so meant she did not have the tenant’s consent to enter the premises. Given that, I find the landlord committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) of the Act.
I am not satisfied it would be just to award exemplary damages. While I accept that, given the circumstances of that occasion, the landlord’s unlawful entry caused the tenant embarrassment, the incident was brief. Given a more casual approach to entries had been acceptable on previous occasions, I accept the landlord did not intend to cause the tenant embarrassment or disrupt the interview. I therefore dismiss the claim for exemplary damages for unlawful entry on 9 June 2024.

Does the tenant owe the landlord rent arrears?

The landlord provided rent records which show that, at the end of the tenancy, the tenant owed $3,400 in rent arrears. The rent records are not in the usual format, in that, they do not clearly show on which weeks the rent arrears accrued. However, the landlord says a review of the tenant’s own bank records shows rent was not paid on 1/08/19, 26/09/19, 31/12/20, 20/06/24 and 27/06/24. That equates to 5 weeks rent, which at $680 per week, is $3,400.
The tenant says she did not miss any rent payments and says she paid two weeks rent in advance at the start of the tenancy. The tenant also says she paid in cash on one occasion but could not say when that was or produce any receipt or other written record.
I am satisfied the landlord has provided records which show the tenant owed $3,400 in rent at the end of the tenancy. The tenant has not demonstrated any inaccuracy in the rent records, and I accept that the tenant’s bank records indicate rent was not paid on at least five occasions when it fell due.
Accordingly, an order that the tenant pay rent arrears of $3,400 is made.

Did the tenant fail to return the keys at the end of the tenancy?

At the end of the tenancy the tenant must return all keys and security devices. See section 40(1)(e)(iv) of the Act.
The landlord says the tenant failed to return two keys, one for the front door and one for the back door. The landlord says the tenant did leave the two swipe cards for the front door, but they did not work. The landlord produced an invoice for the cost of replacing the front door and back door keys and swipe cards for $363.12.
The tenant says the keys and swipe card were all left in a basket and produced a photograph taken on 2 July 2024 at 5:09pm (the day before the last day of the tenancy). The photograph shows the two swipe cards. It does not show the keys. The tenant says they are not visible but were under the items in the basket.
I am satisfied it is more likely than not that the tenant did not return the keys. The photograph produced by the tenant does not show the keys were left with the swipe cards. Did the tenant cause damage to interior walls, and if so, is she liable for the cost of repairs?
A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B of the Act.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) of the Act.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) of the Act. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) of the Act.
I am satisfied the landlord has proved the tenant caused damage to the interior walls and some door frames, most likely by contact with the tenant’s wheelchair. Photographs taken by the landlord on 10 July 2024 show black marks on the skirting and walls which are consistent with contact with the tenant’s wheelchair. Damage to the gib, such as on or near the door frame of the front door is also consistent with contact with the tenant’s wheelchair.
The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. The tenant produced her own photos and a video taken on 2 July 2024. The photographs and video produced by the tenant do not show close up of the particular areas, such as the door frame by the front door, or the skirting boards.
The tenant says those areas were not damaged on 2 July 2024. The tenant says any damage shown in photographs taken by the landlord on 10 July 2024 was not caused by her. I reject the suggestion the damage was caused in between those dates. The marks on the skirting and walls are consistent with damage caused by a wheelchair and I consider it is more likely they were caused – either carelessly or accidentally – by the tenant during the tenancy.
While I am satisfied the landlord has proved the tenant caused the damage, and it is not fair wear and tear, the landlord has not proved that any insurance moneys are irrecoverable. No evidence was produced of an insurance claim being made in relation to repairs for the damaged walls. The insurance policy which was produced (in relation to the claim for damaged timber flooring) records that the landlord’s excess for tenant damage is $500.
Given that is the excess under the landlord’s insurance, I make an award that the tenant pay the landlord $500 towards the cost of repairing the damage to the interior walls. Did the tenant cause damage to a vacuum cleaner and exterior drains, and if so, is she liable for the cost of repairs?
A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. See sections 40(2)(a), 41 and 49B of the Act.
The landlord did not produce any evidence to prove any damage was caused to the vacuum cleaner.
The landlord did not produce any evidence to prove any damage was caused to the gutters and/or exterior drains at the property.
I dismiss the landlord’s claim for compensation for damage to both.

Did the tenant fail to leave the windows reasonably clean?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy. See section 40(1)(e)(iii) of the Act.
The landlord says the tenant did not leave the windows clean. The landlord says the windows were cleaned at a cost of $200, and produced an invoice for that amount.
The landlord did not produce any photographs or other records to show the windows were not left reasonably clean. Without such evidence, I am unable to assess whether the tenant breached their obligations under section 40(1)(e)(iii) of the Act.
The landlord has not proved their claim and I dismiss the claim for window cleaning.

Did the tenant fail to leave the premises reasonably clean?

As stated above, at the end of the tenancy the tenant must leave the premises reasonably clean and tidy. The landlord says the tenant did not leave the interior of the premises “reasonably clean” and says it took Ms Baczea three days to clean the premises. An invoice for $800 for an “exit clean” was produced.
The tenant says the premises was cleaned every week by commercial cleaners and before she moved out, her and her daughter did an exit clean. The tenant produced photos and a video taken on 2 July 2024.
I note that a tenant is not required to leave a property in an immaculate standard of cleanliness. The standard is what an average, reasonable bystander would consider “reasonably clean” and “reasonably tidy”. A professional cleaner is likely to bring a property to a standard that is higher than “reasonably clean” and “reasonably tidy.”
The landlord has not produced evidence to show the areas of the house they say were not left “reasonably clean.” At the hearing, the landlord referred to marks on the garage floor. Photographs of those areas were referred to. I am satisfied they show wear and tear from normal use of a garage. One photograph referred to by the landlord showed paint dust had been left on a skirting board following repairs by the tenant, but I am not satisfied that is sufficient to show “more or less every room” of the house needed cleaning, as stated by Ms Baczea.
The landlord has not proved their claim and I dismiss the claim for compensation for exit cleaning.

Should either party be reimbursed the application fee?

As neither party has substantially succeeded with their claim, neither party is entitled to reimbursement of their filing fee. Should the Tribunal suppress either party’s name?
Both parties sought suppression of their name, however, neither party was wholly or substantially successful in their claims.
I have considered whether I should grant name suppression order for either party having regard to the interests of the parties and public interest under section 95A(4) of the Act.
I am mindful that open justice is a fundamental principle in our legal system.
The parties’ applications for suppression are declined for the following reasons: a. It is common for parties appearing before the Tribunal to seek suppression orders. But that is not of itself a sufficient reason to make the order. b. The disputes before me are not unusual or other than the ordinary business of the Tribunal. c. The open justice principle requires the outcome of adjudication to be available to the public; and d. Weighing up the interests of the tenant and the public interest, the public interest outweighs the tenant’s interests.
Accordingly, no order is made for suppression of either of the parties names.

Tenancy Tribunal case 4948613 — Rent arrears at 56 Seamount Drive, Red Beach, Red Beach 0932

At a glance

Tenancy Tribunal case 4948613 — Rent arrears at 56 Seamount Drive, Red Beach, Red Beach 0932

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord fail to maintain the sliding door from the lounge?

Did the landlord fail to maintain the ensuite bathroom toilet?

Did the landlord enter the property unlawfully?

Does the tenant owe the landlord rent arrears?

Did the tenant fail to return the keys at the end of the tenancy?

Did the tenant fail to leave the windows reasonably clean?

Did the tenant fail to leave the premises reasonably clean?

Should either party be reimbursed the application fee?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord fail to maintain the sliding door from the lounge?

Did the landlord fail to maintain the ensuite bathroom toilet?

Did the landlord enter the property unlawfully?

Does the tenant owe the landlord rent arrears?

Did the tenant fail to return the keys at the end of the tenancy?

Did the tenant fail to leave the windows reasonably clean?

Did the tenant fail to leave the premises reasonably clean?

Should either party be reimbursed the application fee?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions