What was the outcome of Tenancy Tribunal case 5168633?

The tribunal order states: The Tenant’s application is dismissed.

How much money was awarded in case 5168633?

To The Landlord Immediately. 3. The…: $737.67 awarded to landlord

What type of tenancy dispute was case 5168633?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5168633?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11759068-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5168633?

The tribunal order states: The Tenant’s application is dismissed.

How much money was awarded in case 5168633?

To The Landlord Immediately. 3. The…: $737.67 awarded to landlord

What type of tenancy dispute was case 5168633?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5168633?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11759068-Tenancy_Tribunal_Order.pdf.

13 Harbutt Avenue, Mount Albert, Auckland 1025 Tenancy Tribunal Case 5168633 — Property damage

Claims and awards in Tenancy Tribunal application 5168633. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
to the Landlord immediately. 3. The Landlord is entitled to retain the	$737.67		to the Landlord immediately. 3. The Landlord is entitled to retain the

Order

The Tenant’s application is dismissed.
The Tenants must pay $27 to the Landlord immediately.
The Landlord is entitled to retain the $737.67 cost of repairing the damaged cooktop.

Reasons

Both parties attended the hearing.
There are two applications. The Tenants have applied to recover the $737.67 withheld from their bond refund. The Landlord has filed a cross application, seeking to retain the $737.67, which was the cost of repairing damage to a near new cooktop in the premises. The Tenants say they should not be liable for that damage. The damaged cooktop
The Tenants say that the cooktop was damaged during the tenancy when a plastic cup fell from a cupboard and landed on the cooktop, cracking a corner of the glass cooktop cover. The Landlord says that the Tenants should be liable for the cost of repairs and has provided an invoice dated from Axial Applicant Servicing Ltd for the $737.67 cost of performing the required repairs.
The Tenants say that they should not be liable. They say that the falling plastic cup should not have caused the damage to the cooktop and that the damage was instead due to by a manufacturing defect or should otherwise have been covered by the manufacturer’s warranty. The law
Under section 49A of the Residential Tenancies Act 1986 (the RTA), there is a general principle that a tenant has no liability or obligation to meet the cost of any damage to the premises. However, relevant to the facts of this case, under section 49B of the RTA, a tenant can be liable where: a. the Landlord proves that the damage was caused during the tenancy and was not fair wear and tear; and b. the Tenant does not prove that the damage was not caused by any careless act or omission. My assessment
I am satisfied that the damage to the cooktop occurred during the tenancy. The Tenants also accepted that the damage occurred during the tenancy. They say that the damage occurred when one of the Tenant’s was reaching for a plastic cup from a cupboard above the cooktop. The Tenants say that the plastic cup fell from the cupboard onto the cooktop, causing the damaging the glass.
I am also satisfied that this damage was more than fair wear and tear. Fair wear and tear is the deterioration of premises due to both reasonable use and ordinary operation of natural forces, reasonable conduct on the part of the tenant being assumed. See the discussion in Accessible Properties New Zealand Ltd v McKeefry [2019] NZTT 4114629, 4169403. The damage to the cooktop was not caused by deterioration or the ordinary operation of natural forces. The damage was caused by impact from a falling cup. Both parties agreed that this is not fair wear and tear.
Because the Landlord has proven that the damage occurred during the tenancy and was not fair wear and tear, to avoid liability for this damage, the Tenants must prove they did not carelessly cause or permit the damage. I accept that the Tenants’ actions were not deliberate, but I find that the actions of the Tenant were nonetheless careless, in that the damage was caused through the lack of attention, care or precaution by the Tenant. Based on the evidence I heard, the damage happened when a Tenant reached into a cupboard above her head, and then either dropped or knocked a cup onto the cooktop, causing the glass at the corner of the cooktop to crack.
As the Landlord pointed out, the Tenant should have known of the need to exercise care around the cooktop, and to have understood that the cooktop could be damaged by a falling object. By reaching above her head for a cup, and either knocking or dropping the cup onto the cooktop, I find that the Tenant did not exercise the necessary care.
The Tenants say that a plastic cup should not have caused the damage to the cooktop and that the Landlord should not be entitled to recover this amount as it should have made a claim against the manufacturer’s warranty to cover the cost of repairs.
Again, it is for the Tenants to prove that the falling cup should not have caused the damage to the cooktop and that the damage was instead due to by a manufacturing defect or should otherwise have been covered by the manufacturer’s warranty. The Tenants have not discharged this onus. They led no evidence as to the existence of any manufacturing defect that would have made the cooktop overly susceptible to damage (other than the evidence of the damage itself) and led no evidence to show that cooktops cannot ordinarily be damaged by plastic objects falling from above.
Consequently, I am not satisfied that the Tenants have proven that it is more likely that the damage was attributable to an inherent flaw in the cooktop. Further, given my finding that the damage was caused by low-level carelessness, it is questionable whether any manufacturer’s warranty would apply. The Tenants are therefore liable.
As in the case, 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 cost of the repair, 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 RTA.
The repair cost $737.67. That is the amount that the Landlord is entitled to recover as it is less than the insurance excess of $1,400 and less than four week’s rent. Filing fee
Because it has been wholly successful in its claim, the Landlord is entitled to recover the filing fee of $27. I order accordingly.

Claims and awards in Tenancy Tribunal application 5168633. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
to the Landlord immediately. 3. The Landlord is entitled to retain the	$737.67		to the Landlord immediately. 3. The Landlord is entitled to retain the

Order

The Tenant’s application is dismissed.
The Tenants must pay $27 to the Landlord immediately.
The Landlord is entitled to retain the $737.67 cost of repairing the damaged cooktop.

Reasons

Both parties attended the hearing.
There are two applications. The Tenants have applied to recover the $737.67 withheld from their bond refund. The Landlord has filed a cross application, seeking to retain the $737.67, which was the cost of repairing damage to a near new cooktop in the premises. The Tenants say they should not be liable for that damage. The damaged cooktop
The Tenants say that the cooktop was damaged during the tenancy when a plastic cup fell from a cupboard and landed on the cooktop, cracking a corner of the glass cooktop cover. The Landlord says that the Tenants should be liable for the cost of repairs and has provided an invoice dated from Axial Applicant Servicing Ltd for the $737.67 cost of performing the required repairs.
The Tenants say that they should not be liable. They say that the falling plastic cup should not have caused the damage to the cooktop and that the damage was instead due to by a manufacturing defect or should otherwise have been covered by the manufacturer’s warranty. The law
Under section 49A of the Residential Tenancies Act 1986 (the RTA), there is a general principle that a tenant has no liability or obligation to meet the cost of any damage to the premises. However, relevant to the facts of this case, under section 49B of the RTA, a tenant can be liable where: a. the Landlord proves that the damage was caused during the tenancy and was not fair wear and tear; and b. the Tenant does not prove that the damage was not caused by any careless act or omission. My assessment
I am satisfied that the damage to the cooktop occurred during the tenancy. The Tenants also accepted that the damage occurred during the tenancy. They say that the damage occurred when one of the Tenant’s was reaching for a plastic cup from a cupboard above the cooktop. The Tenants say that the plastic cup fell from the cupboard onto the cooktop, causing the damaging the glass.
I am also satisfied that this damage was more than fair wear and tear. Fair wear and tear is the deterioration of premises due to both reasonable use and ordinary operation of natural forces, reasonable conduct on the part of the tenant being assumed. See the discussion in Accessible Properties New Zealand Ltd v McKeefry [2019] NZTT 4114629, 4169403. The damage to the cooktop was not caused by deterioration or the ordinary operation of natural forces. The damage was caused by impact from a falling cup. Both parties agreed that this is not fair wear and tear.
Because the Landlord has proven that the damage occurred during the tenancy and was not fair wear and tear, to avoid liability for this damage, the Tenants must prove they did not carelessly cause or permit the damage. I accept that the Tenants’ actions were not deliberate, but I find that the actions of the Tenant were nonetheless careless, in that the damage was caused through the lack of attention, care or precaution by the Tenant. Based on the evidence I heard, the damage happened when a Tenant reached into a cupboard above her head, and then either dropped or knocked a cup onto the cooktop, causing the glass at the corner of the cooktop to crack.
As the Landlord pointed out, the Tenant should have known of the need to exercise care around the cooktop, and to have understood that the cooktop could be damaged by a falling object. By reaching above her head for a cup, and either knocking or dropping the cup onto the cooktop, I find that the Tenant did not exercise the necessary care.
The Tenants say that a plastic cup should not have caused the damage to the cooktop and that the Landlord should not be entitled to recover this amount as it should have made a claim against the manufacturer’s warranty to cover the cost of repairs.
Again, it is for the Tenants to prove that the falling cup should not have caused the damage to the cooktop and that the damage was instead due to by a manufacturing defect or should otherwise have been covered by the manufacturer’s warranty. The Tenants have not discharged this onus. They led no evidence as to the existence of any manufacturing defect that would have made the cooktop overly susceptible to damage (other than the evidence of the damage itself) and led no evidence to show that cooktops cannot ordinarily be damaged by plastic objects falling from above.
Consequently, I am not satisfied that the Tenants have proven that it is more likely that the damage was attributable to an inherent flaw in the cooktop. Further, given my finding that the damage was caused by low-level carelessness, it is questionable whether any manufacturer’s warranty would apply. The Tenants are therefore liable.
As in the case, 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 cost of the repair, 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 RTA.
The repair cost $737.67. That is the amount that the Landlord is entitled to recover as it is less than the insurance excess of $1,400 and less than four week’s rent. Filing fee
Because it has been wholly successful in its claim, the Landlord is entitled to recover the filing fee of $27. I order accordingly.

Tenancy Tribunal case 5168633 — Property damage at 13 Harbutt Avenue, Mount Albert, Auckland 1025

At a glance

Tenancy Tribunal case 5168633 — Property damage at 13 Harbutt Avenue, Mount Albert, Auckland 1025

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions