Tenantcheck Insights · Case study
Tenancy Tribunal case 5355642 — Rent arrears at 40 Weld Street, Cambridge, Cambridge 3434
Published 9 March 2026 · Application 5355642
Landlord favoured
- Rent arrears
- Property damage
At a glance
Key facts from the published tribunal order.
Outcome
Landlord favoured
From published order
Location
Cambridge
Tribunal region
Adjudicator
G Barnett
Dispute themes
Award balance
Gross awards, any bond applied per the order, and the remaining balance payable.
- Gross award
- $1,259.43
- Total balance for Tenant to pay Landlord
- $1,259.43
Claims & awards
What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.
| Claim | Landlord | Tenant | Reason |
|---|---|---|---|
| Rent arrears to 26 September 2025 | $731.43 | Rent arrears to 26 September 2025 | |
| Repairs kitchen | $500.00 | Repairs kitchen | |
| Filing fee reimbursement | $28.00 | Filing fee reimbursement | |
| Net award | $1,259.43 | ||
| Total payable by Tenant to Landlord | $1,259.43 |
Claims and awards for application 5355642 — net $1,259.43 NZD. Verify on MoJ.
Rent arrears to 26 September 2025
- Amount
- $731.43
- Awarded to
- Landlord
- Reason
- Rent arrears to 26 September 2025
Repairs kitchen
- Amount
- $500.00
- Awarded to
- Landlord
- Reason
- Repairs kitchen
Filing fee reimbursement
- Amount
- $28.00
- Awarded to
- Landlord
- Reason
- Filing fee reimbursement
Net award
Landlord $1,259.43
Total payable by Tenant to Landlord
Landlord $1,259.43
Claim types — money lines allowed on this order
Order
- Lisa Kelly and Brad Kelly to pay Robert John Guille Marsden $1,259.43 from the bond, calculated as shown in table below.
- The Bond Centre is to pay the bond of $1,259.43 (3226644-006) to Robert John Guille Marsden immediately. The Bond Centre is to pay the bond of $20.57 (3226644-006) to Lisa Kelly and Brad Kelly immediately.
Reasons
- Both parties attended the hearing by telephone.
- The tenancy commenced on 8 August 2024 and ended on 26 September 2025. On or about 17 July 2025, there was a fire in the kitchen which caused damage to the floor in front of the stove and to nearby kitchen cabinetry. The damage was covered by the landlord’s insurance. A dispute has arisen as to the tenant’s liability for the excess. The landlord claims that the damage was the result of carelessness, making the tenant liable for the excess. The tenant claims that the damage was accidental and that they are not liable. The matter remains unresolved. On 23 September 2025, the tenant filed a claim seeking a refund of the bond. On 29 March 2025, the landlord filed a counterclaim seeking rent arrears, and the insurance excess for the damage.
- The parties state that the rent arrears are not in dispute and were the result of a miscalculation by the tenant. An up-to-date rent summary has been produced. I award the rent arrears claimed. Damage claim
- There is no dispute that the damage occurred during the tenancy. The issue is whether the damage was the result of carelessness by the tenant, in which case the tenant is liable for the insurance excess. If the damage was not caused by carelessness, it will be considered fair wear and tear, for which the tenant is not liable.
- Photographs of the damage have been produced. These show a burn mark on the wooden floor in front of the stove, a burn mark on a small area of vinyl flooring nearby and burn marks on the kitchen cabinetry next to the stove.
- The tenant stated they were cooking some vegetable soup in a pot on one of the elements. The stovetop is ceramic. The tenant stated that the pot they used did not completely cover the element. The tenant also stated that they had the nearby kitchen window open to allow for the cooking smells to disperse, and that they also had a set of French doors in the nearby dining room open. The tenant described there being a light breeze at the time.
- The tenant stated that the pot had been left to simmer on a low heat. They then stepped outside for about five minutes to hang washing on the clothesline. While outside, they heard the smoke alarm located in the hallway activate. They entered the kitchen to find a tea towel burning on the floor in front of the stove. The tenant extinguished the fire.
- A short time later they took photographs of the damage (produced) and sent a text message stating: “Hi Rob, I’m really sorry, but we’ve had an accident at the house. I was cooking some soup and had the windows open, to let the smell out. While I was outside, the smoke alarms went off. A tea towel had blown onto the stove from the bench and had caught fire on the element.....”
- The message goes onto describe the extent of the damage. The tenant stated that the tea towel was polyester, which they had since discovered was not as fire resistant as those made from cotton. The tenant stated that the tea towel had been on the bench about 300mm – 400mm from the stove, along with a spoon used for stirring. The tenant stated that a gust of wind must have blown the tea towel onto the element.
- The landlord submits that leaving the pot on the stove unattended while cooking was negligent. They question the amount of time the tenant spent away from the kitchen, stating that the location of the smoke alarm was such that a significant build-up of smoke would have been required to trigger the alarm in the hallway, approximately three metres away. The landlord stated that the floors were native hardwood, and that for the damage to have occurred, the burning tea towel must have been on the floor for some time.
- The tenant stated that the smoke alarm is sufficiently sensitive to detect smoke from the kitchen within a short period of time, and that polyester burns faster and hotter than cotton, meaning that the damage would have occurred relatively quickly.
- The landlord produced a quote for $287.50 to repair the wooden floor, and $9,004.50 to replace the entire kitchen. Law
- To succeed with a claim for damage the landlord must prove that damage 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 Residential Tenancies Act 1986 (Act).
- Fair wear and tear can be described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).
- 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.
- Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B (1) of the Act.
- Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
- In dealing with the issue of carelessness the question is whether the tenant was exercising a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. The test is objective and not based on the subjective opinion of the tenant or landlord.
- When awarding compensation for damage, the Tribunal must also consider betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating betterment and depreciation, the Tribunal must consider the age and condition of the items at the start of the tenancy and their estimated useful life. Analysis and decision
- Unattended cooking is the leading cause of house fires in New Zealand. Fire and Emergency New Zealand safety guidance recommends staying in the kitchen while cooking at all times. If cooking must be left unattended, the stove should be turned off. Flammable items, such as tea towels, should be kept away from the cooking area. In my opinion, a reasonably prudent tenant would not go outside and leave a pot unattended on an element that is on. In this case, the tenant had also opened the windows to ventilate the area, creating the possibility that wind could move nearby items, such as a tea towel on the bench, onto the element. This created a foreseeable risk that the tea towel could come into contact with the element. A reasonable and prudent tenant exercising proper care would have either remained inside while the pot was on the element, turned the element off when they went outside, and ensured that there were no flammable items left nearby that could make their way onto the element.
- I am satisfied that the damage occurred during the tenancy and was more likely than not the result of carelessness. The landlord has insurance for damage. The tenant’s liability in this case is limited to the excess. Excess amount and compensation
- The landlord is claiming an excess of $650.00. The tenant notes that the excess disclosed in the tenancy agreement is $500.00.
- Section 13A (2) of the Act states that a tenancy agreement must include information as to whether the property is insured and the excess that applies. Section 13A (4) states that should anything required under sub section (2) change and no longer be correct that the landlord should update the information in writing within a reasonable time after becoming aware of the change.
- It appears that the excess disclosed in the agreement may have been the one which applied when the landlord occupied the property themselves. The landlord stated that they advised their insurer that the property was being rented. However, it was unclear when the excess increased from $500.00 to $650.00.
- It appears that the anniversary of the policy coincided with the start of the tenancy. If the policy was renewed during the tenancy, it is likely that the policy was updated to reflect the increased excess. However, the tenant was not notified in writing of any increase until the dispute arose regarding liability.
- In my opinion the excess should remain that contained in the tenancy agreement.
- The quote to repair the floor is reasonable. The other quote is to replace the entire kitchen. It is broken down into two parts: firstly, refacing all the fronts of the cabinetry, and secondly, replacing the benchtop and sink. The extent of the damage to the cabinetry and benchtop can be described as minor, and replacing the entire kitchen would result in significant betterment. However, in this case, awarding the landlord compensation equivalent to the insurance excess is appropriate and proportionate to the damage caused. Costs
- Because the landlord has substantially succeeded with the claim, I have reimbursed the filing fee. Name suppression
- Although the landlord has been substantially successful and is entitled to name suppression, they do not seek it, and no orders are made.
Topics & place
Topics are dispute themes across the order (not the same as claim-type money lines).
Residential Tenancies Act sections
s13A, s28, s40(2), s49B, s49B(3)
Key findings
- Dispute theme: rent arrears
- Dispute theme: property damage
Frequently asked questions
Common questions about this Tenancy Tribunal case.
What was the outcome of Tenancy Tribunal case 5355642?
The tribunal order states: Lisa Kelly and Brad Kelly to pay Robert John Guille Marsden $1,259.43 from the
How much money was awarded in case 5355642?
Filing Fee: $28.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Rent Arrears: $731.43 awarded to landlord
What type of tenancy dispute was case 5355642?
The primary dispute was Rent arrears. Related themes: Property damage.
Where can I read the official tribunal order for case 5355642?
The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13239846-Tenancy_Tribunal_Order.pdf.