Do you have a precedent whereby the Court has ruled that compensation…

Question

Do you have a precedent whereby the Court has ruled that compensation costs
rewarded to the Landlord will be determined by using IRD depreciation rates?

Chris The Lawyer · Accepted Answer

Chris The Lawyer : Hi and welcome. My first response will follow shortly. Please
feel free to follow up if anything is not clear.
Chris The Lawyer : Tenancy tribunal decisions are not well collected and indexed
so I am looking to see what is around.
Chris The Lawyer : But damages to a landlord are usually based on actual damage
rather than using depreciation. The reason for this is that a tenancy is a
contract, and therefore breaches of the contract lead to damages based on
contractual principles.
Chris The Lawyer : So things like repairs are based on the actual costs. Failure
to pay rent is of course easy to calculate. If the property cannot be leased due
to damage then loss of rental is the appropriate claim.
Chris The Lawyer : It would help if you explain more precisely what your
depreciation claim is about.
Customer:

Thanks so much. We have looking to claim damages for carpet where the tenant has
spilt paint on the carpet and there a numerous other stains that can't be
removed (even after profresional cleaning) - the carpet will need to be
replaced. Its 9 years old so wondered if the compensation claim would be based
on the IRD depreciation rates (diminishing value) - or do I understand your
above statement which suggests the tenants would have to replace the carpet?
Also we have a special conditions agreement additional to the RTA which clearly
states no pins, staples, cello tape, etc on the walls (its wallpaper) however
they have breached this condition and the walls all now need a replaster and
rewallpaper or paint. Again this has been careless and willful so can we class
this a their cost to repair?

Chris The Lawyer : You can claim the replacement cost, but your loss is a none
year old carpet. The IRD depreciation rates for this would probably help set
it's actual value, so I think that is reasonable. The plastering also can be
claimed as repairs, and I have certainly see this claimed before. That would be
the actual cost
Customer:

OK thanks - can you provide a precedent from another case with the Court has
used IRD depreciation value? It would strengthen our case if precedent was set.
Again if you have seen a precedent in Court that shows in the ruling that
plastering repairs were claimed and actual cost provided to the Landlord - that
would be really helpful.

Chris The Lawyer : I don't think the tribunal needs precedents but evidence of
the damage. They don't really rely on case precedents, as courts do at a higher
level. Under the residential tenancies Act, the tenant is clearly liable for
damage, so the tribunal will want to see things like photos, invoices and hear
from you as to the inspection.
Chris The Lawyer : You will get a chance to mediate the dispute first with the
tenants, if this is useful. This enables a confidential discussion with a
mediator to sort out the issues and what is in dispute. And if you don't settle
you then have the hearing. Have you been to the tribunal before?
Customer:

We have already completed two mediation sessions and already been to the
tribunal court where the adjudicator was quite frankly hopeless. We have
appealed her decision and the Order as both Tenants and us can't make head or
tail of it. We are now in front of a Judge Walker at District Court and the
whole discussion is around compensation for damages (which the tenants
acknowledge they have done) however the amount of compensation is up for
discussion as both Tenant and us can't work out what this will be. While usually
this done at the end of the tenancy - the damage is significant and we can't
rent the property in its current state. We have estimate around $60K worth of
damage, majority of which will be tenant's liability however this depends on any
depreciation costs? The precedent document will be critical to our case if the
Judge has an example where the Court has used IRD rates before.

Chris The Lawyer : I understand better. I will shortly provide some examples
Chris The Lawyer : the starting point for damages is a case called Hadley v
Baxendale which says that damages from the breach of a contract are those which
are reasonably foreseeable when the parties entered the contract. I do t think
there is a problem with this. The next issue is the measure of damages and the
methodology. I take it you are not insured? Damage to this extent may be covered
under your owners insurance.
Chris The Lawyer : I have been looking at a case called Stuart v Powell where
there were similar issues. The judge commented that damages issues were factual,
but referred to the actual losses suffered and in that case the effect of
dampness on the carpet and walls. The point she made was that you cannot get the
damages for restoration to new condition, but just the cost of repairs, taking
into account the existing condition at the time of the tenancy, and fair wear
and tear.
Chris The Lawyer : fair wear and tear is a theme in other cases such as
Hobsonville realty v Amosa, where the judge said only reasonable costs can be
claimed, and not fair wear and tear
Customer:

Thank you - this is most helpful - so should I quote "Stuart v Powell" in the
memorandum I need to send to the Court so the Judge has an opportunity to refer
to it prior to the hearing? Is it possible to view the precedent online? We have
some insurance but it will not cover all the damages as we only covered chattels
to the value of $26K, the estimated damage comes to $82K for full replacement of
carpet and plastering and repaint for the walls and repair to other damages.

Chris The Lawyer : This sort of case really succeeds on the facts rather than
case law. If you can show the tenants did the damage, then the next issue, as
you have pointed out, is the methodology. For a claim like this I would probably
use a quantity surveyor, but you may not have time.
Chris The Lawyer : I haven't found a specific case on the depreciation, but that
seems a logical approach to me.
Chris The Lawyer : The cases are not easily accessible to the public
unfortunately, because district court cases are not reported except on paid
search engines?
Chris The Lawyer : The full citation is Stuart v Powell Date:21 June
2011Court:District Court, Lower HuttJudge:Judge HarropFile no:CIV-2011-032-191
Chris The Lawyer : I don't know if this will fit but here is the case
Chris The Lawyer : S M Harrop Judge[1]The appellant, Mr Stuart as agent for the
Lower Hutt Trust, appeals against a decision of the Tenancy Tribunal dated 27
October 2010. On behalf of the Trust he had sought compensation of $7,560.62 for
repair and other costs incurred following Ms Powell's departure from a five-year
tenancy atXXXXX Naenae on 17 April 2010. There was also a claim for $692.14 for
arrears of rental. [2]To a large extent the Tribunal dismissed Mr Stuart's claim
for damages. It ordered that the bond of $860.00 be released by payment of
$613.80 to Mr Stuart and the balance of $246.20 to Ms Powell. It dismissed Mr
Stuart's application for rent arrears. The Tribunal Decision [3]The Tribunal
heard evidence during a lengthy hearing from Mr Stuart and Ms Powell, from Mrs
Livia Coman, who is a trustee of the Trust and lives in Sydney, and from Mr
William Graham, who is the estranged husband of Ms Powell, but who visited the
tenanted property just about every weekend in order to see his children who
lived there with Ms Powell. [4]As the Tribunal's decision is reasonably
succinct, it is set out in full below: “Order of the Tribunal The Tribunal
hereby orders: That the bond of $860.00 be released as follows: $613.80 to Garry
Stuart as agent for the Lower Hutt Trust $246.20 to XXXXX XXXXX (Section 22 and
127(4)(a) Residential Tenancies Act 1986) The application for rent arrears and
repairs to the property is dismissed. (Section 78(1)(i) Residential Tenancies
Act 1986) 1.Application The landlord Garry Stuart as Agent for The Lower Hutt
Trust seeks: •Rent arrears on an abandoned property •Bond refund •Compensation
for: ‘Cleaning and rubbish removal Replacement of floor coverings Repairs to
property Painting costs Change of locks ’”2.Background This tenancy commenced on
4 March 2005 Mr. Garry Stuart acts as an agent for the Lower Hutt Trust. Livia
Coman is a Trustee of the Lower Hutt Trust. Ms. Coman resides in Sydney. During
visits to New Zealand she would take the opportunity to visit the property. On
12 April 2010 Mr. Stuart on behalf of the Trust lodged an application with the
Tribunal. The application was in regard to rent arrears, abandonment of
property, goods left on the property and damage to the property. The application
was set down for hearing on 13 May 2010 The Tribunal released its decision on 21
May 2010 On 27 May 2010 Mr. Stuart lodged a rehearing application. The rehearing
was subsequently granted allowing the matter to be heard afresh. Both Mr. Stuart
and Ms. Coman gave evidence on behalf of the Trust. XXXXX XXXXX presented her
own evidence and called William Graham her ex husband as a witness. 3.Issues
a.Rent arrears on abandoned property In April 2010 Ms. Powell verbally advised
Mr. Stuart that it was time to move on and therefore she would be vacating the
tenancy. In response Mr. Stuart wrote to Ms. Powell stating- ‘The Trustees have
reluctantly decided to accept your verbal notice to vacateXXXXXon the 17.4.2010
with possession to the owner on 18.4.2010 ’Clearly this cannot qualify as an
abandoned property. Although the notice given by the tenant was verbal and short
of the 21 days notice requirement it was clearly accepted even if reluctantly by
the landlord. Therefore estoppel applies and from which the landlord cannot now
try to step back into a different position to obtain financial advantage.
b.Cleaning and rubbish removal Mr. Stuart's evidence in regard to this issue was
that on final inspection the house and grounds were in a poor state and not in a
suitable condition to re-let. Ms. Coman's evidence was that she normally would
visit the property twice a year. On a visit in October 2009 she found the
property particularly messy and on her subsequent visit in April 2010 she says
the house and grounds was an absolute disaster. The carpet was ripped and
soiled, chewing gum and stickers were stuck on doors, nothing was cleaned and
there was rubbish under the deck area. Ms. Powell accepted there were stains on
the carpet and an oil stain on the driveway. She says she could not do much to
the outside as her wheelbarrow had been stolen. In my view there are 2 issues
here. There is the issue of normal cleaning to a standard of reasonable and
tenant's obligation to remove all rubbish from the property at the end of the
tenancy. The other issue in terms of cleanliness needs to be assessed on the
condition of the property as a result of any prevailing dampness. That issue
shall be dealt with later in this decision. In terms of general cleaning I find
that Ms. Powell did not achieve anywhere near the standard required. The matter
of the wheelbarrow going missing cannot be taken as a genuine reason. Clearly
there has been a build-up of rubbish which would defeat the abilities of a
simple wheelbarrow. I am satisfied Ms. Powell failed in her obligation to leave
the premises in a reasonably clean and tidy condition and from which
compensation to the landlord is justified. I have set that compensation at
$446.00 c.Change of locks Ms. Powell held the responsibility to hand back the
keys to the landlord at the end of the tenancy. She failed to do so and
therefore the cost of $167.80 replacement cost is a liability on her. d.Broken
window Ms. Powell says the window was broken when a burglar broke into the
property. She notified New Zealand Police and the person was caught. Although
Mr. Stuart questions the lack of a Police report, I am satisfied that the damage
was more probable than not as a result of an intruder. I am supported in this
view by the evidence of Ms. Powell of the intruder being apprehended. e.Repairs
to property Much of the problems with the interior of the house relate to
dampness issues Ms. Powell maintains the house was always damp and to the extent
she purchased a dehumidifier which she used continually. When she complained to
Mr. Stuart she was told to open windows to allow ventilation. She had problems
with taps in the bathroom leaking. Mr. Stuart said they were corroded and only
tightened them up. They leaked again. As the landlord did nothing about it she
had them replaced as she couldn't stand the constant dripping. There was a
leaking outdoor tap that made the exterior wall damp. There was leaking water
toby which was reported to the local authority and repaired by council staff.
The landlord was also notified. Ms. Powell says she then rea1ized there was
water pooling underneath the house from a different source. To assist with the
removal of water her son dug a trench. In response to not telling the landlord
she says he must have known as he had a pipe repaired. Mr. Stuart's evidence was
that the floor from the bathroom to the hallway had significant damage as a
result of a leaking pipe underneath the vanity. He believes the pipe had been
leaking for some time. The laundry floor had a1so been damaged by water and had
to be replaced. Mr. Stuart says he had no knowledge of leaks under the house and
had not authorized or done any repairs to pipes. The only notification he had
from the tenant regarding any repairs needed was in relation to the gate. He
believed the dampness problem inside the premises was due to lack of
ventilation. I have given this matter careful consideration and from which I
find I cannot be satisfied there were no complaints from the tenant with respect
to the dampness problems. There were inspections during the tenancy with any
concerns about dampness being met with a response of the need to ventilate
rather than a response of investigation to ensure it was not due to structural
failure. The issue of the taps is an example. I cannot accept that Ms. Powell
would take it upon herself to purchase and install replacement taps without
first complaining to the landlord. Nor can I accept the tenant would bother to
dig a trench if there was not a water leaking problem. There was leak from a
bathroom pipe. Presumably that water pipe is of the same vintage as those
underneath the house. The documented evidence clearly establishes that prior to
sale there was a pipe that had to be repaired under the house. The vendor was
only prepared to repair that pipe. Further documentation noted ‘the plumbing
pipe connections are of a type which are no longer used as they are prone to
splitting particularly under floors and during cold spells’. The only realistic
conclusion is that much of the plumbing is in disrepair due to age and from
which the tenant cannot be held accountable for damage as a result.
f.Replacement of floor coverings The landlord seeks $3127.00 for replacement of
carpet and vinyl. This claim cannot succeed. The photographic evidence shows
that much of the problem with the floor is as a result of the prevailing
dampness. The work required to make any difference by cleaning goes well beyond
the tenant's responsibility. The issue is one of fair, wear and tear and
betterment. The landlord cannot expect to be put in a better position at the
expense of the tenant because of fair wear and tear that occurred as a result of
occupation of a house. It appears the carpet was at least in some areas showing
signs of wear hence the tenant putting tape over a split and acquiring some
carpet to cover another area that had worn. Also there is the effect of the
prevailing dampness and leaks that would have an effect on the floor coverings.
The application fails. g.Painting The same principal applies to this issue as
with the carpet. There is no evidence to support any major redecorating of the
house prior to this tenancy commencing. It is noted that the Valuation Report
dated 20 October 2004 references the property as being ‘a little tired’. Over
the length of 5 year tenancy the reasonable expectation is that a house deemed
to being a little tired at the beginning would be significantly tired after such
a lengthy tenure. I accept there is some children's scribble on walls. However
considering that the property is ready for redecorating because of age there is
no loss due to some scribble. The application fails. h.Window and door repair
There was no sustaining evidence put forward on this matter. ”Law on Appeals
[5]Section 118 of the Residential Tenancies Act allows a District Court Judge on
appeal to quash the order of the Tribunal and order a rehearing by the Tribunal,
or substitute any orders that the Tribunal could have made, or dismiss the
appeal. The section envisages a rehearing with the procedure to be followed at
an appeal to be such as the Judge may determine. [6]Rule 14.18 of the District
Court Rules 2009 provides that when conducting a re-hearing, the Court may
rehear all or part of the evidence taken before the Tribunal. As is typical, the
Notes of Evidence given before the Tribunal were typed up and have been
considered by me, along with the Tribunal's decision and the submissions of Mr
Stuart for the appellant and Ms Powell for the respondent. [7]The Court is also
granted full discretionary power to hear and receive further evidence on
questions of fact, either by oral evidence or by affidavit. In this case no such
further evidence has been received. Other powers on appeal are set out in Rules
14.19 to 14.24. [8]The correct approach of an appellate Court to this kind of
appeal was succinctly set out in the judgment of the Supreme Court in Austin,
Nicholls & Co Inc v Stichting Lodestar [2008] 2 NZLR 141: “[4]Perhaps the most
familiar general appeals are those between courts. So, in the present case, the
Court of Appeal on general appeal from the High Court under s 66 of the
Judicature Act 1908 was entitled to take a different view from the High Court.
Similar rights of general appeal are provided by statute in respect of the
decisions of a number of tribunals. The appeal is usually conducted on the basis
of the record of the court or tribunal appealed from unless, exceptionally, the
terms in which the statute providing the right of appeal is expressed indicate
that a de novo hearing of the evidence is envisaged. (An example of a right of
appeal with that effect was that under the legislation considered by the Court
of Appeal in Shotover Gorge Jet Boats Ltd v Jamieson.) In either case, the
appellant bears an onus of satisfying the appeal court that it should differ
from the decision under appeal. It is only if the appellate court considers that
the appealed decision is wrong that it is justified in interfering with it.
[5]The appeal court may or may not find the reasoning of the tribunal persuasive
in its own terms. The tribunal may have had a particular advantage (such as
technical expertise or the opportunity to assess the credibility of witnesses,
where such assessment is important). In such a case the appeal court may rightly
hesitate to conclude that findings of fact or fact and degree are wrong. It may
take the view that it has no basis for rejecting the reasoning of the tribunal
appealed from and that its decision should stand. But the extent of the
consideration an appeal court exercising a general power of appeal gives to the
decision appealed from is a matter for its judgment. An appeal court makes no
error in approach simply because it pays little explicit attention to the
reasons of the court or tribunal appealed from, if it comes to a different
reasoned result. On general appeal, the appeal court has the responsibility of
arriving at its own assessment of the merits of the case. ”[9]In considering
appeals from the Tribunal regard needs to be had to s 85 of the Residential
Tenancies Act. That section provides that the Tribunal is to exercise its
jurisdiction in a manner that is most likely to ensure the fair and expeditious
resolution of disputes between landlords and tenants of residential premises.
Further, the Tribunal is to determine each dispute according to the general
principles of law relating to the matter and the substantial merits and justice
of the case, but is not bound to give effect to strict legal rights or
obligations or to legal forms or technicalities. Grounds for Appeal and
Submissions in Support [10]Mr Stuart's appeal notice contained the following
grounds: “1.Tribunal failed to apply s 40(4) and s 45(4) of The Residential
Tenancies Act. 2.Tribunal accepted comments from tenant against evidence of two
witnesses. 3.Rent claimed is for the period when rent stopped to end of tenancy.
4.Comments from tenant misleading. ”[11]At the hearing, Mr Stuart began by
emphasising that the main thrust of the appeal was s 40(4) of the Residential
Tenancies Act 1986. This provides: “Where any damage to the premises is proved
to have occurred during any tenancy to which this Act applies, it should be for
the tenant to prove that the damage did not occur in circumstances constituting
a breach of subs (2)(a). ”[12]Section 40(2)(a) provides that the tenant shall
not: “Intentionally, or carelessly damage, or permit any other person to damage,
the premises. ”[13]In short, Mr Stuart was submitting that the substantial
damage to the property found at the end of the tenancy by him as landlord's
agent, particularly to the carpet and flooring had not been proved by the tenant
not to have been either intentionally, or carelessly damaged by her, or someone
else. He had expressly mentioned this provision at the hearing (as is apparent
from page 4 of the transcript). He also said there had been no notification of
damage during the course of the tenancy as required by s 40(1)(d). [14]Mr Stuart
repeated various other points made at the hearing before the Tribunal and said
that the landlord accepted that the tenant was not responsible for fair wear and
tear, but said that the difference between this property at the start of the
five-year tenancy and at the end of it was in no way accounted for on that
basis. He emphasised the substantial work that was required in order to put the
property in a position to be offered for re-letting. He contended that Ms Powell
had not told the truth in several respects and in particular, disputed that the
water-related damage to the floor could possibly have come from under the house;
rather it must have been as a result of her use of the water in the house, in
particular, in the bathroom area. [15]Mr Stuart also highlighted the internal
painting done by Ms Powell, which he said was done without permission, something
required under s 42(1) of the Act. Submissions for Ms Powell [16]In response Ms
Powell made the same points she made before the Tribunal; I can see from reading
the Notes of Evidence that these are accurately summarised in the Tribunal
decision. The hearing before me lasted approximately one hour and it was very
evident that each party strongly disputes significant factual assertions made by
the other. In short, Mr Stuart clearly feels very aggrieved on behalf of the
Trust at the extent of the time, effort and expenditure required to put the
property back in a position to be re-tenanted, but Ms Powell feels equally
aggrieved at the conditions she had to live with during the tenancy and at being
blamed for issues relating to the property, which she does not feel were her
responsibility. She also clearly feels that she did not receive the support she
was entitled to expect from Mr Stuart when complaints were made. [17]She said
she had to act to address these problems herself, such as installing carpet
herself to cover carpet which had become threadbare, installing a dehumidifier
because of the condensation and painting the walls because of the black mould
which developed on them. Her constant concern, she said, was for the security
and health of herself and her children, one of whom is autistic. Discussion and
Decision [18]It is convenient to deal with the issues that arise under the same
headings that the Tribunal adopted. Rent Arrears on Abandoned Property [19]The
Tribunal recorded that Ms Powell had, in April 2010, orally advised Mr Stuart
that she would be moving out. Mr Stuart replied in writing saying that the
Trustees had reluctantly decided to accept that notice as at 17 April 2010, with
possession to the owner the following day. The Tribunal rejected the contention
by Mr Stuart that the absence of written notice from the tenant under s 51 meant
that when she left Ms Powell had abandoned the property giving rise to a claim
of $692.14 for rent arrears. [20]The Tribunal regarded the landlord as
effectively estopped from resiling from its acceptance, however reluctant, of
the notice to vacate. [21]In my view the Tribunal's decision on this point was
clearly correct. While there may have been a technical argument that the
landlord was still entitled to written notice, in practical terms this was
without merit, particularly having regard to the obligation to determine each
dispute in accordance with the substantial merits and justice of the case. As
the Adjudicator observed, the landlord was trying to obtain financial advantage
by belatedly insisting on written notice when it had accepted that oral notice
sufficed. [22]I dismiss this ground of the appeal. Cleaning and Rubbish Removal
[23]The Tribunal upheld the landlord's claim that Ms Powell did not meet her
obligation to leave the premises in a reasonably clean and tidy condition and
agreed that the landlord was entitled to compensation. That was set at $446.00.
[24]I did not understand Mr Stuart to contest either that finding or the fixing
of compensation at that level. As I understood it, his complaints about the
state of the property on vacation by the tenant, were primarily directed at the
need for and the cost of repairs. Change of Locks [25]The Tribunal again upheld
the landlord's claim in this respect and directed that the cost of replacing the
keys at a cost of $167.80 was something Ms Powell was liable for. There was no
appeal against this finding. Broken Window [26]The Tribunal found that this
damage was most likely to have been incurred during the course of one of the
several burglaries of the property. There was no appeal against this aspect of
the Tribunal's finding and no submissions were made about this during the
appeal. Repairs to Property [27]This of course was the major aspect of the
hearing before the Tribunal and again before me on appeal. Clearly there was a
dispute on the evidence about whether there had been complaints by Ms Powell to
Mr Stuart regarding dampness problems. The Adjudicator Mrs Robinson considered
the competing evidence carefully and found that there were such complaints,
despite Mr Stuart's denials. She could not accept that Ms Powell could have
taken it upon herself to purchase and install replacement taps without first
complaining to the landlord, nor could she accept that a tenant would bother to
dig a trench under the house, as one of Ms Powell's sons had done, if there was
not another leaking problem. [28]In short then, the Tribunal having heard and
seen both parties, and their supporting witnesses, made a clear credibility
finding against Mr Stuart and in favour of Ms Powell. Mr Stuart complains that
the Tribunal ought not to have accepted comments from Ms Powell against the
evidence of himself and Ms Conan. However, where there are significant factual
disputes of this kind the Tribunal has to resolve them somehow and it is
virtually inevitable that the party found against will disagree. I am unable to
say that the Tribunal approached this issue incorrectly. On the contrary,
reasons were given by the Tribunal for reaching this conclusion. Although Mr
Stuart complains that the Tribunal did not apply s 40(4), ie. did not place the
onus on the tenant, I am not at all satisfied that the Tribunal failed to do so.
While s 40(4) is not expressly mentioned in the decision, which is necessarily a
summary and succinct, the provision had clearly been drawn to the Adjudicator's
attention and one would expect all such Adjudicators to be fully familiar with
it. [29]I consider the flaw in Mr Stuart's argument is that he suggests it is
not possible for a tenant to discharge the necessary onus without corroborative
evidence, especially when the landlord provides evidence from two witnesses to
the contrary. As a matter of principle that cannot be right. It is perfectly
open to a Tribunal to accept the evidence of a tenant without any corroboration
if it considers, having reflected carefully on the competing evidence, that it
is more likely than not that the tenant's evidence is correct. This is exactly
what Mrs Robinson did on this occasion and her decision shows that she not only
gave careful thought to all of the evidence, but provided two insightful reasons
for accepting Ms Powell's evidence. It is relevant to note that in a number of
other respects the Tribunal found against Ms Powell so there was balanced
consideration of each issue. [30]Further, on the issue of repairs arising from
water damage, Mrs Robinson understandably concluded that the water pipe in the
bathroom which undoubtedly leaked was likely to have been of the same vintage as
those under the house. Indeed the evidence showed that prior to sale to the
present landlord, there was a pipe under the house that had had to be repaired.
Mrs Robinson concluded that this was indicative of the overall state of the
plumbing and damage resulting from it was not something for which the tenant
could properly be held accountable. In short, without expressly saying so, the
Tribunal accepted that the damage had occurred in circumstances which did not
come within s 40(2)(a). [31]Accordingly on this head of the claim, I am not
persuaded by Mr Stuart that the Tribunal was wrong. I am not satisfied that I
would be justified in interfering with it. Although I had the advantage of
seeing Mr Stuart and Ms Powell present arguments, the Tribunal heard evidence
from them over a much longer period and also heard from their supporting
witnesses, who were each questioned. That gave the Tribunal a considerable
advantage over me and further reinforces my conclusion that I would not be
justified in interfering with the Tribunal's assessment. [32]This aspect of the
appeal is therefore dismissed. Replacement of Floor Coverings [33]Under this
heading the landlord sought $3,127.00 for replacement of carpet and vinyl. The
Tribunal rejected that claim because much of the problem with the floor was as
the result of the prevailing dampness which was held to be the landlord's
responsibility, not that of the tenant. The Tribunal also accepted that the
landlord could not be put in a better position at the expense of the tenant
simply because of fair wear and tear that had occurred as a result of occupation
of the house. She noted that there had been significant wear apparent during the
tenancy, resulting in Ms Powell putting tape over a split and acquiring some new
carpet to cover another worn area. Effectively the Tribunal accepted that the
prevailing dampness and leaks for which the landlord had to take responsibility,
was the primary reason for the floor covering damage and therefore for the need
to replace it. [34]The Tribunal's finding on this issue is based on the earlier
findings of credibility against Mr Stuart and in favour of Ms Powell and,
effectively, on the Tribunal's determination of the commonsense of the
situation. Again, Mr Stuart has not satisfied me that the Tribunal's assessment
of this issue was wrong. His submissions do not persuade me that I would be
justified in interfering with the Tribunal's decision. This aspect of the appeal
is also dismissed. Painting [35]The Tribunal treated this issue in the same way
as the replacement of floor coverings. There was no evidence of any major
redecorating of the house before the tenancy commenced and the valuation report
produced to the Tribunal, dated 20 October 2004, had described the property as
being “a little tired”. There was a claim for $375.00 for the paint cost and
some portion of a $1,130 claim for labour must have related to painting, but
also covered removal of the old carpet and underlay. The Tribunal rejected this
claim as being the kind of work that would be necessary after a five-year
tenancy where the property was “a little tired” at the beginning. As Mrs
Robinson observed, it would be “significantly tired” at the end of such a
tenancy. She did not accept that some children's scribble on the walls gave rise
to any significant loss because the property needed redecorating anyway. [36]At
the appeal, Mr Stuart emphasised that the painting had been done without
permission in breach of s 42(1) of the Act which provides: “The tenant shall not
affix any fixture to the premises, or make any renovation, alteration, or
addition of or to the premises, except — (a)In accordance with the tenancy
agreement; or (b)With the prior written consent of the landlord. ”[37]There is
an issue as to whether painting amounts to “a renovation” of the contemplated
kind. There is at least an implication that the section is directed at
structural alterations. However, assuming for present purposes that painting
requires prior written consent, the real issue here is whether the cost of
repainting ought to be awarded. Again, I am not persuaded by Mr Stuart that the
Tribunal was wrong to decline this claim. Regardless of whether the painting
done by Ms Powell without permission had been done or not, essentially the
Tribunal concluded that repainting of the rooms would have been required, given
the length of this tenancy and the comments in the valuation report six years
earlier. [38]I therefore dismiss this aspect of the appeal. Window and Door
Repair [39]This claim was dismissed by the Tribunal because no evidence had been
put forward about it. Nothing was said about this on the appeal either and
accordingly it is not a matter I need to deal with. Summary and Conclusion
[40]Having carefully considered the file, the notes of evidence, the
photographs, the Tenancy Tribunal order and the submissions of both parties, I
have come to the clear conclusion that Mr Stuart has not discharged the onus of
satisfying me that I should differ from the decision under appeal. He has the
obligation to demonstrate that the decision was wrong and that it is justified
for me to interfere with it. In my view the Tribunal had advantages over me in
seeing the parties give evidence as well as their supporting witnesses who were
questioned by the parties. The hearing was lengthy and on my independent
assessment of everything put before me, I cannot say that a different decision,
in any respect, ought to have been reached. [41]Essentially, after a thorough
examination of the issues at the hearing and in the reserved decision, the
Adjudicator made some decisions which the landlord is happy with and some that
he is very unhappy with, but which are based on credibility findings with
reasons set out. There is, in my view, no basis for any aspect of the Tribunal's
decision to be disturbed. [42]The appeal is dismissed.

Do you have a precedent whereby the Court has ruled that compensation…

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