RSS Feed

Cause and consequence are two different things

Monday, December 14, 2020

Landlords seeking compensation for damages caused by tenants should take care to prove the cause, not just the consequences, of the damage as VNG RENTALS LIMITED vs Xu [2020] NZTT Auckland 4269426 demonstrates.

  • On or about 2 May 2020, the bathroom of the apartment flooded. Water leaked into the adjoining apartment resulting in an approx $4.5K damage.
  • In an email to the tenants on 2 May 2020, the landlord’s representative stated, “According to the plumber’s advice, it is highly like tenants’ hair stopping the drain up, and which has even led to your neighbor unit 903’s carpet gets wet (sic)”.
  • On or about 5 May 2020, the building manager and contractor attended the site to clean up and repair.
The claim

The landlord applied to the Tribunal for compensation on the basis that the tenant had caused the damage and provided the following to support its claim:

  • copy of the invoice from the building manager stating ‘water leakage damage inspection during day off’; 
  • copy of the invoice from carpet cleaning contractor;
  • photographs of the damage; and 
  • record of aforementioned 2 May email to the tenant

Note the landlord did not provide: 

  • copy of plumber’s invoice; nor
  • plumber’s advice of the likely cause of the flooding (i.e. tenant’s hair)


The law
The adjudicator summaries the tenant’s obligations vis-à-vis damages to the property under ss 40(2)(a), 41 and 49B of the Residential Tenancies Act thus:

A landlord must prove that the damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission.



The adjudicator considers the ‘[e]vidence as to the cause of the flood is essential to the applicant’s claim’ and is critical of its absence (the landlord had proved that the flooding occurred but not who/what caused the flooding in the first place). Curiously the inference is that the adjudicator had not ruled out fair wear and tear as having caused the flooding. 



Adjudicator Beaumont dismissed the application criticising the landlord’s evidence as falling short of proving the cause of the flood stating ‘[p]roduction of invoices and photographs are not evidence of the cause of the damage, only of the consequences thereof.’


Take-home for landlords
  • Evidence of damage is not the same as evidence of the cause of damage
    • It is one thing to prove that the flooding had occurred, it is another to prove what/who caused the flooding.
  • Any claims alleging the tenant as having caused the damage should be supported by evidence.
    • In this instance, the landlord would have been better served if it had provided pictures of any hair retrieved from the drain and/or report/invoice from the plumber noting clogged hair as the cause of the flooding.        
  • Hearsay evidence for the cause of the damage (i.e. the email of 2 May) is insufficient. If your contractor ever opines on who/what have likely caused damage to the property then make sure he puts that opinion down in writing.

Overall helpfulness scale (Because let's be honest, Tribunal decisions can be a bit of a mess but still, landlords and tenants need all the help we can get!)
⭐️ ⭐️ ⭐️ ⭐️


Recent Posts


interest only principal and interest election 2017 ocr meth contamination auckland council commerce commission anti-social behaviour business TCIT relationship education Level 4 cgt rta debt enforcement ird Must know election2020 insulation CoreLogic Must knows legal rent increase trespass maintenance house prices first home buying buying Editor's Choice rent worksafe rental wof RTAA 2019 privacy reserve bank robert kiyosaki insurance Market report p lab speculator damage asbestos winz warm up new zealand LIM cash-flow opes partners finance Property (Relationships) Act productivity covid-19 clnz sale and purchase subdivision shower dome auckland development tax anz property value buyer's agent tenant banking income HHGA ask an expert return kiwibuild Jeff Bezos partners Landlording property apprentice Tribunal case study sublease short-term rental tenancy services rtaa2020 tenancy tribunal television negotiation structure property management CCC bad tenant investment strategy Gluckman letting ventilation extractor fan management equity ring-fencing quiet enjoyment termination fixed-term tenancy bond airbnb Guest blog property maintenance mindset skill shortage twg report Kris Pedersen Mortgages and Insurance capital gain smoke alarm interest rates initio meth off the plan nzpif positive cash flow advice khh buying rules HHS Investor story re agent housing bubble bond form rental market gluckman report heater unitary plan RBNZ early termination letting fee brightline financial advisers act property DTI investor wealth creation minor dwelling scotney williams recycling equity How to beginner investor housing affordability Q&A warren buffett will mortgage holiday house rent arrears water bill HSWA retaliatory notice personal growth Question and answer heating yield Sponsored post market rent tenancy issues trust wins government parry v inglis inspection Standards New Zealand data security watercare shortland chartered accountants bankruptcy sale and purchas trademe market apia lvr renovation boarding house Investment tip Holler rta reform Case study landlord cat property cycle building barfoot and thompson


Introducing Our Partners
Principal Sponsor - Kris Pedersen Mortgages & Insurance logo Gold Sponsor - Barfoot & Thompson logo Gold Sponsor - CoreLogic logo Property Apprentice logo The Insulation Warehouse logo The Renovation Team logo The New Zealand Property Investors' Federation logo
09 360 2376

The Tenancy Practice Service and TPS Credit Control work closely with the Auckland Property Investors' Association. Our vision of bringing helpful resources, documents and high quality services to Auckland Property Investors and Property Managers is shared by APIA, so its a partnership that works well. 

The Auckland Property Investors' Association is a great organisation for those who want access to advice and information from a range of industry experts and partners. 

Mathieu Holt- Managing Director, The Tenancy Practice Service & TPS Credit Control
Through the Association I found the channels and methods to fund the purchase of property I never dreamed about. Grant Brown

All round it has been one of those things Neil and I felt was really worthwhile belonging to. We have learned so much it has just built our confidence in what we are doing.

Janice Bieleski
I read two articles in the monthly magazine that saved me over $5,000. That is my membership fee for the next 26 years and I am sure I will learn a whole lot more! John Duncan
Fantastic organisation. The networking opportunities are brilliant and provide us with information and opportunities that cannot be obtained anywhere else. We learn something new at every meeting and we've been in this game for nearly 20 years. Pauline and Gyanen Kumar

I find the information obtained from various APIA meetings very useful in guiding my own property investment and rental management.  I also enjoy the networking opportunities with like-minded investors.  I am inspired by other investors’ success and find the more experiences and knowledge that I share with others, the more confident I become.  

Thanks to all APIA event organizers and administrators for your brilliant work. 

Stella Shao

I like talking to people and learning from their experience because it gives me the confidence to invest well. I think it is a knowledge thing. I now know I am doing things the right way.

Stephen Weatherall

My APIA membership has become a total success.

Every time I attend a monthly or regional meeting I come away with so many useful and positive tips that have added value to my property investments and management.

Not only that, the website is a great place for practical advice and useful information. It has now evolved into an important resource for my business.

Talk about value for money! The discounts I have been getting at Bunnings when I present my APIA membership card have more than paid for my annual subscription!

Tim Duffett, Plan A Investments Limited