What was Tenancy Tribunal case 4510709 about?

The tribunal order states: The Tribunal Orders suppression of the landlords’ names and identifying

How much money was awarded in case 4510709?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4510709?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4510709?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10049968-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4510709 about?

The tribunal order states: The Tribunal Orders suppression of the landlords’ names and identifying

How much money was awarded in case 4510709?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4510709?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4510709?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10049968-Tribunal_Order_Redacted.pdf.

129A Fairview Avenue, Fairview Heights, North Shore, Tenancy Tribunal Case 4510709 — Exemplary damages

Order

The Tribunal Orders suppression of the landlords’ names and identifying details.
This Order supersedes the Order dated 17 January 2023 made in application 4462020.
Jennifer Marie Smith must pay [The landlord/s] $4,350.32 immediately, calculated as shown in the table below.

Reasons

The landlords attended the hearing. The tenant did not attend.
The hearing was scheduled to begin at 2:00pm. At midday a message was received by the call centre that the tenant would not be able to attend the hearing due to testing positive for COVID. No adjournment request was made, and no evidence was provided in support of the tenant’s inability to attend. An opportunity was given to the tenant to attend by teleconference which the tenant declined.
The landlords oppose an adjournment of the hearing.
In considering whether an adjournment should be granted, the Tribunal needs to balance the landlords’ right to have their application dealt with expeditiously against the tenants right to appear and be heard. In the circumstances, given that the tenant has not appeared at previous hearings, had been given the opportunity to attend by teleconference and because this matter has been before the Tribunal since March 2023, I took the view that the that it would be unduly prejudicial to the landlords, who had again prepared and attended in person, for the hearing not to proceed. Background
This tenancy was ended by Order of the Tribunal dated 17 January 2023 (application 4462020). That Order directed that the bond be paid to the landlords to offset rent arrears. A balance of $1,480.44 remains owing under that Order.
After recovering possession of the premises, the landlords undertook a methamphetamine screening test which indicated the presence of methamphetamine. A composite test was undertaken by [testing company] on 20 January 2023, which appears from subsequent reports to have indicted a theoretical maximum contamination level of 15 μg per 100 cm 2 .
No individual testing of those samples was undertaken, which means there is no evidence as to the extent to which any individual site was contaminated, before decontamination work was undertaken. As the Gluckman report (below) notes: “For initial screening of properties, combining multiple samples taken throughout a dwelling into a single composite sample, as permitted in NZS 8510:2017, has limited value in accurately reflecting levels of risk, and depending on how the data are integrated can lead to quite misleading interpretation and false impressions of high exposure, triggering another round of expensive testing”, ......or, as in this case, expensive remediation work.
Based on the composite test results, the landlords engaged [decontaminating company] to undertake decontamination by defogging in the premises.
Further testing undertaken by [testing company] on 28 February 2023 showed contamination levels on the 9 sites tested, ranging from 0.07 μg per 100 cm 2 , to
73 μg per 100 cm 2 on all sites except the bathroom door, where a concentration of 3.4 μg per 100 cm 2 was found.
Further decontamination of that specific site was undertaken and a retest of the bathroom door on 8 March 2023 showed a level of 0.02 μg per 100 cm 2 .
Before the decontamination was carried out the landlords removed all furnishings, including carpets and drapes, as well as chattels, from the premises.
The landlords seek compensation for the costs of the methamphetamine testing and remediation work and for the cost of replacing those discarded items. The landlords also seek compensation for the loss of rents while the decontamination was carried out and exemplary damages for the tenant having used the premises for an unlawful purpose.
The matter was allocated a hearing on 27 October 2023. The tenant did not appear at that hearing and for the reasons recorded in that Order I directed that further service was waived, except service by SMS.
The October Order notes: “This application involves methamphetamine contaminated premises where the level of contamination appears to fall between the NZS8510:2017 standard and the “Gluckman” standard. In the circumstances it is fair to allow the landlord an opportunity to consider whether further evidence should be brought as to the applicability of those standards and as to whether the premises were used for methamphetamine manufacture.”
The landlords have filed submissions arguing that the recommendations in the Gluckman report should not be followed as they are not legally binding and that in any event: a. the premises were more likely than not to have been used for methamphetamine manufacture; and b. the premises were carpeted. So, for those reasons the applicable standard for decontamination should be the NZS8510:2017 Standard of 1.5 μg per 100 cm 2 rather than the “Gluckman standard” of 15 μg per 100 cm 2 .

Should the Gluckman report recommendations be applied?

The “Gluckman report” is an abbreviation for a report dated 29 May 2018 entitled “Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards” by Professor Sir Peter Gluckman, ONZ KNZM FRSNZ FMedSci FRS, then Chief Science Advisor to the Office of the Prime Minister. 16The most regularly cited recommendation in that report is that in premises which have not been used for manufacture of methamphetamine, “methamphetamine levels that exceed the NZS8510:2017 clean up standard of 1.5 μg per 100 cm 2 should not be regarded as signalling a health risk. The exposure to methamphetamine levels below 15μg per 100 cm 2 would be highly unlikely to give rise to any adverse effects.” Contamination of 15μg per 100 cm 2 being the level at which decontamination should be considered necessary, has become known as the “Gluckman standard”.
As the landlords and their advisors are aware, the District Court has confirmed the Tribunal’s use of the Gluckman standard as representing the best state of knowledge of risk to human health from methamphetamine contamination available. It is not necessary to traverse again the relevant decisions here.
There is no basis of which I am aware, to depart from the District Court’s endorsement of that approach.
The evidence in this case does not prove that the premises were contaminated by methamphetamine to a degree exceeding the Gluckman standard.

Is it relevant that the premises were carpeted?

The landlords cite the NZS8510:2017 standard as indicating a need to decontaminate their carpets. The standard notes “If a property has one or more high use areas that are contaminated (exceed 1.5 μg per 100 cm 2 ) but the property contains carpet and other high use areas that are not contaminated (below 1.5 15μg per 100 cm 2 ) the carpets in high use areas that are not contaminated should at least be cleaned to reduce the risk of any future exposure to occupants.”
Again, that standard uses as the basis for contamination the much lower 1.5 μg per 100 cm 2 level.
The Gluckman report specifically addresses health risks from exposure to contamination. I cannot find in the report any basis for the view that cleaning or removal of carpets is necessary where contamination levels found elsewhere in the property do not approach the level at which, in terms of the report’s recommendations, health risks might be present.

Is it relevant whether the premises were used for methamphetamine manufacture?

The Gluckman report distinguishes between premises in which methamphetamine has been smoked and those in which manufacture has occurred. The reason for that distinction is explained as follows (my emphasis): “Remediation is certainly warranted if methamphetamine levels signify that manufacture is likely to have taken place. Remediation includes removal of all potentially contaminated porous materials or items (furnishings, carpets) and cleaning of the contaminated surfaces, using the NZS 8510:2017 standard as a guide. Where lower levels are detected, remediation is often not justified. However, as low levels cannot definitively rule out manufacture, remediation involving cleaning down to the 1.5 μg/100 cm2 standard may be prudent if there is also reason to suspect previous meth lab activities. This would be as a precautionary measure to remove other toxicants that may be present but not measured.
The report notes, “Assuming that the same level of methamphetamine residue has been found in two similar dwellings – one used only for manufacture, and the other only for smoking – then the health risk posed by methamphetamine itself is the same in both dwellings.”
So, in this case, with a low level of established contamination, the health risk from exposure to methamphetamine, is not made greater if manufacture occurred on the premises.
In looking at whether remediation is indicated, to remove a health risk from other chemicals that might be resent if manufacture has occurred, the report notes (my emphasis), “Although it is not possible to determine conclusively whether a dwelling had been used for manufacture or only for smoking based solely from the methamphetamine levels found, it is reasonably straightforward to determine the health risks involved. In theory, a former meth lab may potentially have other contaminants that contribute to the health risk. In cases where there are signs of traditional manufacturing activity, these may be of concern if high levels of methamphetamine contamination indicate that cleaning has not been carried out. However, since methamphetamine levels are considered a marker for the levels of other potential contaminants, a former meth lab containing low levels of methamphetamine is also likely to contain low levels of other associated substances. Furthermore, the manufacturing methods most often used in New Zealand now mostly involve solvent-free distillation in sealed vessels that minimise contaminant spread, although methamphetamine is released (along with low levels of minor by-products) in the ‘salting out’ phase. The use of methods involving toxic metals such as lead and mercury has not been reported in New Zealand [10]. Hence from a health risk perspective, if methamphetamine levels are low, it is likely to be immaterial whether a dwelling was used as a meth lab or not. The relevance of distinguishing between the two types of dwellings is mostly relevant for forensic and law enforcement purposes.
Finally, I note from the report that, “Former meth labs generally have relatively high levels of methamphetamine residue on sampled surfaces (levels greater than 30 μg of methamphetamine per 100 cm2 surface area are thought to be indicative of manufacturing activity). Forensic work by the Institute for Environmental Science and Research (ESR) suggests that levels of methamphetamine can be assessed against an ‘excessive’ threshold that is indicative of manufacturing activity. A US study has reported levels typically higher than 25 μg/100 cm 2 and New Zealand ESR data from 136 meth labs found an average level of 54 μg/100 cm 2 .

Have the premises been used for manufacture of methamphetamine?

The landlords point to a number of circumstantial factors from which they say it can be inferred that manufacture occurred in the premises. The landlords live above the premises, and it was their concerns about illicit activity at the premises that led them to have them tested when the tenant vacated. In summary those concerns were that: a. there were frequent visits to the premises by known gang members/ associates at all hours; b. visitors to the premises were seen bringing large fans with them and taking them away again when leaving; c. visitors were seen bringing large plastic bins to the premises and then taking them away when leaving; d. the curtains were left closed when the tenant and her visitors were present but after periods where there had been lots of visitors, the premises were well aired and then the tenant would leave for several days; e. the tenant was observed to be behaving erratically and when [The landlord/s] took a wrongly delivered parcel down to her, the tenant became agitated and angry and told her never to come to the premises again; f. [The landlord/s] says that during that visit, she was exposed to a very acrid chemical substance that caused her to have breathing issues, gagging, sore eyes and nausea that led her to seek medical advice; g. pungent fumes were emitted from the premises and the extractors causing the landlords to close the windows and doors above the premises; h. after the tenancy ended, the landlords discovered an empty 5 litre bleach container which they say is consistent with extensive chemical cleaning and evidence of such cleaning was identified in the [testing company] report.
During the tenancy the landlords reported their concerns to the police who advised the landlords to pursue remedies through the Tribunal.

Is the tenant responsible for contamination of the premises?

There is strong circumstantial evidence suggestion that illicit activities were carried on at the premises. It was reasonable for the landlords to be concerned about what was happening there.
I accept the landlords’ evidence that the premises were extensively cleaned and repainted immediately before the start of this tenancy, so any methamphetamine contamination is more likely than not to have occurred during the tenant’s occupation.
I find it proved on balance that the premises were contaminated during the tenancy by the tenant having used or allowed the premises to be used for the illegal purposes of methamphetamine smoking and/ or manufacture.
The landlords were justified in having the premises tested for methamphetamine contamination and they are entitled to recover that cost as a reasonable and foreseeable loss caused by the tenant’s breach of her obligations.
It follows that a period during which the premises could not be tenanted while testing was carried out, is equally a reasonable and foreseeable loss caused by the tenant’s breach. In my view 2 weeks would be a reasonable period in which to have the premises tested, during which time the premises could not be rented.
Section 40(2)(b) provides that a tenant shall not use the premises or permit the premises to be used for any unlawful purpose. Breach of that obligation is an unlawful act for which exemplary damages of up to $1800.00 may be awarded.
By using or allowing the premises to be used for smoking and/ or manufacture of methamphetamine, the tenant has committed an unlawful act.
In considering whether to make an award of exemplary damages for that breach the Tribunal must take into account the considerations in section 109(3) which are: a. the intent of the person committing the unlawful act; b. the effect of the unlawful act; c. the parties’ interests; and d. the public interest.
In my view, this was an egregious breach of the tenant’s obligations. The breach carried with it the risk of the premises (and the landlords home above it) being connected with significant unlawful activity as well as creating risk to the health of future occupants of the premises and of the landlords. There could not be a stronger public interest than in discouraging tenants from this misuse of premises they are renting.
I find that an award of the maximum available exemplary damages would be just.

Should the landlords be compensated for decontamination and associated costs?

As noted, the evidence does not prove the existence of methamphetamine residues in the premises at a concentration that would warrant decontamination in terms of the Gluckman standard. The only question is whether an alternative standard should be applied, given the possibility of the premises having been used for methamphetamine manufacture.
The passages from the Gluckman report quoted above, indicate that the question is whether the possibility of manufacture led to an increased likelihood of health risks, that needed to be remediated.
The report makes clear that manufacture of itself it does not create an increased health risk from exposure to methamphetamine. It also indicates that the low levels of methamphetamine contamination found, do not of themselves suggest a probability of manufacture having been carried out.
As to whether the possibility of manufacture having taken place means that the landlords were justified in the remediation steps they took, to remove the possibility of health risks from other chemicals, as cited above the report says that “.....from a health risk perspective, if methamphetamine levels are low, it is likely to be immaterial whether a dwelling was used as a meth lab or not. The relevance of distinguishing between the two types of dwellings is mostly relevant for forensic and law enforcement purposes.”
The only basis on which the Tribunal could award compensation to the landlords for the losses incurred by the remediation steps they chose to take, is if those losses were caused by the tenant’s breach. That could only be the case if the remediation was reasonably required to address health risks caused by the contamination found.
While I have sympathy with the landlords’ situation, the evidence does not persuade me that the premises were contaminated by methamphetamine or possibly by other chemicals, to a degree that created health risks requiring remediation as undertaken by the landlords.
It follows that the landlords are not entitled to compensation for loss of rents during the remediation period, beyond the initial two weeks awarded.
As the landlords have had claims upheld, I award recovery of the filing fee.

Tenancy Tribunal case 4510709 — Exemplary damages at 129A Fairview Avenue, Fairview Heights, North Shore,

Tenancy Tribunal case 4510709 — Exemplary damages at 129A Fairview Avenue, Fairview Heights, North Shore,

Order

Reasons

Should the Gluckman report recommendations be applied?

Is it relevant that the premises were carpeted?

Is it relevant whether the premises were used for methamphetamine manufacture?

Have the premises been used for manufacture of methamphetamine?

Is the tenant responsible for contamination of the premises?

Should the landlords be compensated for decontamination and associated costs?

Order

Reasons

Should the Gluckman report recommendations be applied?

Is it relevant that the premises were carpeted?

Is it relevant whether the premises were used for methamphetamine manufacture?

Have the premises been used for manufacture of methamphetamine?

Is the tenant responsible for contamination of the premises?

Should the landlords be compensated for decontamination and associated costs?