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.
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
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?
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
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 JudgeThe 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. 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 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. 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 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. 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. 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. 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  2 NZLR 141: “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. 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. ”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 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. ”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). ”Section 40(2)(a) provides that the tenant shall not: “Intentionally, or carelessly damage, or permit any other person to damage, the premises. ”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). 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. 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 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. 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 It is convenient to deal with the issues that arise under the same headings that the Tribunal adopted. Rent Arrears on Abandoned Property 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. The Tribunal regarded the landlord as effectively estopped from resiling from its acceptance, however reluctant, of the notice to vacate. 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. I dismiss this ground of the appeal. Cleaning and Rubbish Removal 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. 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 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 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 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. 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. 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. 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). 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. This aspect of the appeal is therefore dismissed. Replacement of Floor Coverings 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. 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 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. 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. ”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. I therefore dismiss this aspect of the appeal. Window and Door Repair 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 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. 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. The appeal is dismissed.