What was the outcome of Tenancy Tribunal case 4620950?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4620950?

Property Damage: $300.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rubbish Removal: $25.00 awarded to landlord

What type of tenancy dispute was case 4620950?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4620950?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9377232-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4620950?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4620950?

Property Damage: $300.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rubbish Removal: $25.00 awarded to landlord

What type of tenancy dispute was case 4620950?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4620950?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9377232-Tenancy_Tribunal_Order.pdf.

291B Courtenay Street, Strandon, New Plymouth 4312 Tenancy Tribunal Case 4620950 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4620950 — net $345.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rubbish removal	$25.00	Rubbish removal
Exemplary damages – Locks	$300.00	Exemplary damages – Locks
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$345.44
Bond	$2,200.00
Total payable by Tenant to Landlord	$345.44

Claims and awards in Tenancy Tribunal application 4620950 — net $345.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rubbish removal	$25.00	Rubbish removal
Exemplary damages – Locks	$300.00	Exemplary damages – Locks
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$345.44
Bond	$2,200.00
Total payable by Tenant to Landlord	$345.44

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The landlord’s application for rent arrears is dismissed.
The landlord’s application for exemplary damages for unlawful use of the premises is dismissed.
The landlord’s application for compensation for cleaning/damage for methamphetamine is dismissed.
Victoria Ann Michelle James to pay Deborah Kelly and David Kelly $345.44 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,200.00 (6465104-001) immediately apportioned as follows: Deborah Kelly and David Kelly: $345.44 Victoria Ann Michelle James: $1,854.56

Reasons

Only the landlord attended the hearing. I am satisfied the tenant has been satisfactorily served and so the hearing proceeded in her absence.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. The landlord has also applied for exemplary damages in relation to the addition of a lock and the unlawful use of the premises. Burden of proof
As explained at the hearing, the Tenancy Tribunal applies the usual civil law standards. That means that any claim must be established by the person making it, that means the landlord must provide sufficient evidence proving its claim against the tenant. If the landlord does not provide sufficient evidence, then the claimant will be dismissed. The landlord must establish the claim to the balance of probabilities. To put it another way, the evidence showing that there has been a breach on the part of the tenant must be proven to be more likely than not, or put that into a mathematical context, slightly over 50% likely.

How much is owed for rent?

The tenancy began on 14 October 2022 and ended on 4 June 2023.
At the hearing I asked the landlord why the tenancy was 34 weeks and 3 days long but why their rent summary had fewer weeks (despite covering the whole of the tenancy). The landlord referred to weeks being paid in advance being the reason. The landlord says the rent summary did not include the two weeks the tenant has paid in advance. I gave the landlord a hard copy of the rent summary filed so the landlord could amend the rent summary to reflect this. This adjusted the arrears sum on the rent summary to $1,807 which reflects the sum on the application.
However, this does not remedy the deficiency. A number of weeks are missing from the summary so that dates are wrong.
For example, the week commencing 28 October is missing (between line 3 and 4), the week commencing 25 November is missing (between line 6 and 7), the week commencing 9 December is missing (between line 7 and 8), the week commencing 27 January 2023 is missing (between line 13 and 14), the week commencing 31 March 2023 is missing (between line 21 and 22). Towards the end of the summary the position is unclear – week commencing 26 May is missing (after line 28) and the rent summary at line 29 reverts to May.
There are several other typographical errors but these are insignificant and alone would not have impacted on my decision.
As a number of lines are missing this means I cannot be satisfied as to the correctness of the rent summary. Payments made by the tenant may also be missing. I therefore dismiss this part of the claim. Compensation for cleaning/damage relating to methamphetamine and unlawful use of the property Facts
The landlord states that prior to this tenancy commencing, the premises were not tested for methamphetamine contamination. The landlord says however that the whole house was only just refurbished before the tenant moved in. The landlord gave evidence as to a wide range of tradespeople who had been involved in those renovations.
The landlord says that they have owned the property for about 5 years. It has always been occupied by tenants.
Following the end of the tenancy the landlord arranged for a methamphetamine test which was done by TDDA. This report shows the sampling was undertaken on 6 June 2023.
The landlord says that the test was triggered by reports to the landlord of suspicious activity at the premises. In support of the application that the tenant had used methamphetamine the landlord says there were reports of suspicious behaviour of people visiting day and night. The landlord also says the tenant put up a camera and added a lock to the laundry door leading to the garage, the tenant was away from the property frequently and the carpet was stained and oven needed cleaning/wasn’t working.
This test returned readings of methamphetamine as follows: Lounge / Dining
4μg/100 cm2; Meter Board 1.62μg/100 cm2; Main Bedroom 3.7μg/100 cm2 and Laundry 1.82μg/100 cm2. These are positive readings. The photographs of the tests show samples taken from doors and power points.
A further detailed methamphetamine test was undertaken. The report shows it being undertaken on 12 June 2023. The photographs show the samples being taken from doors, save for the kitchen and garage where the samples were taken from the walls. This discrete testing showed the following results: Kitchen - 2.43 μg/100cm² Dining - 3.56 μg/100cm² Lounge - 5.01 μg/100cm² Hallway 1 / Entry - 3.97 μg/100cm² Hallway 2 - 3.70 μg/100cm² Bathroom - 2.99 μg/100cm² Toilet - 3.04 μg/100cm² Bedroom 2 - 2.79 μg/100cm² Garage 1 - 3.49 μg/100cm² Garage 2 - 0.54 μg/100cm² Lounge/Dining - 3.4 μg/100 cm² Meter Board - 1.62 μg/100 cm² Main Bedroom - 3.7 μg/100 cm² Laundry - 1.82 μg/100 cm² The law
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) Residential Tenancies Act 1986 (RTA). If the landlord proves this, then a tenant is liable for the costs of “making good the damage” and other reasonably foreseeable losses related to the damage; sections 49A and 49B(1)(b), RTA. Tenants must also leave a property reasonably clean and tidy (s 40(1)(e)(iii), RTA.
The landlord says that the tenancy agreement says that methamphetamine is smoked and the tenancy agreement provides there is to be no smoking.
A tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) RTA.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. See section 40(3A)(c) and Schedule 1A RTA.
The use or possession of methamphetamine is an imprisonable offence; see the Misuse of Drugs Act 1975.
It is normally the situation that where there are serious allegations, or important matters at stake, then a decision maker will wish to see a level of supporting evidence befitting the significance of the matters to be adjudicated. This is not to say that the party needs to establish their claim at any level greater than the balance of probabilities – they do not. The standard of proof required is on the balance of probabilities. The landlord must establish more likely than not the tenant is responsible for the act or omission constituting the breach of the agreement or the RTA.
I note the New Zealand Court of Appeal judgment in T v M [1984] 2 NZFLR 462, in which the principal judgment was delivered by the then president of the Court of Appeal, Justice Woodhouse, in which his Honour stated: For myself I would say at once that the provision for questions of fact to be "decided on a balance of probabilities" when that is considered merely in terms of the required standard of proof is the definition of a constant. There are no gradations, whatever might happen to be the subject matter. What is required is an affirmative demonstration that the relevant and suggested inference is more probable than not. Nothing less than this will be sufficient. At the same time no more is necessary. But having said that it is not only usual but in any evidential context it is logically right for conclusions in the area of inference and judgment to be influenced both by the purpose to which they are directed and the significance of the assessment being made. Just as there are shades of possibility so the point at which there is satisfaction as to probability will vary depending upon the subject matter. Whether the occurrence under review will seem to be something that is probable or possible or even unlikely is bound to be affected in this way; and as a natural process of thought it has been widely accepted and acted upon throughout the common law world when attempts have been made to explain the civil onus of proof.
His Honour then went on to discuss other decisions of the courts, and that: In my view those various observations are all aimed at explaining the simple need to be careful in estimating whether or not the inference to be drawn is in truth probable rather than merely possible. It is the principle of good common sense that the more serious the issue the greater should be the care used in assessing it. No doubt, as Lord Scarman said in the Khawaja case, the decision in the end is "largely a matter of words". I would simply add that the exercise of that kind of caution or care must not be taken to such a stage that the level of satisfaction required by a Judge on some particular occasion really amounts to introducing a new and more stringent standard of proof than the balance of probabilities actually requires.
For a landlord to succeed in a claim for costs involved in methamphetamine testing and decontamination there are two main aspects that must be proven. a. First, that the contamination was caused during the tenancy (and thus that the tenant is liable). b. Secondly that the level of methamphetamine detected is likely to constitute a health hazard and therefore would entitle the landlord to claim the cost of decontaminating the premises.
It has been well recognised for years, that methamphetamine contamination presents risks for people living in dwellings, when the level of that contamination, is high. The difficulty has been determining what the tolerable level should be, above which the premises would be considered contaminated.
In 2017 Standards New Zealand released Standard NZS 8510:2017 “Testing and decontamination of methamphetamine-contaminated properties”. In short, this standard confirmed that the level at which habitation of residential premises was considered safe, was a level of 1.5 μg/100 cm2. The expectation on landlords arising from this Standard, was to remediate premises contaminated with methamphetamine, to a level of less than 1.5 μg/100 cm2.
However, in more recent times, the Prime Minister’s Chief Science Advisor, Professor Sir Peter Gluckman determined that there was little evidence supporting health risks from exposure to residue from methamphetamine consumption (Report entitled ‘Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards’, 29 May 2018). The report concluded that any levels below 15 μg/100 cm2 were unlikely to present adverse effects.
This matter has been considered by the District Court in Full Circle Real Estate Limited v Danielle Piper [2019] NZDC 4947. Judge Kellar needed to determine which level should be applied. The Court discussed the conflict between the New Zealand Standard and Chief Science Advisors report, and confirmed: The Tenancy Tribunal was in a difficult position. The best state of knowledge of risk to human health from methamphetamine contamination available to the adjudicator was the Gluckman Report. It would have been bold for the adjudicator to have ignored that report in favour of the New Zealand Standard given that the Gluckman report represents the current scientific knowledge on the risk to human health from methamphetamine contamination in dwellings.
In determining whether a property has been damaged by methamphetamine contamination the Tribunal has adopted the 15μg/100cm² threshold.
I note two District Court decisions where the Court has confirmed that in the absence of pre-tenancy methamphetamine testing, it would be very difficult for a landlord to prove the tenant contaminated the premises.
In Anthony James Brooking v Colin Imrie [2021] NZDC 16976, Judge Cameron considered a case where the Tenancy Tribunal accepted that contamination was caused by the tenants, in circumstances where there was no pre-tenancy testing performed. The Tribunal had accepted evidence from a witness, who worked in a childcare centre across the road from the Tenancy, who described the windows covered with a film, security cameras having been installed, and strong chemical smells arising from the premises. The witness also described gang members and other “undesirable” people attending the premises regularly, with cars regularly driving in an out of the premises often, as well as regular visits from the police. On appeal the District Court did not accept that evidence was sufficient to prove that methamphetamine had been used or manufactured on the premises during that tenancy, and concluded that the difficulty with the landlords claim is that there was no methamphetamine test conducted at the beginning of the tenancy, and no actual proof of what occurred during the tenancy. The District Court allowed the appeal, overturning the Tribunal’s decision. In short, the Court considered that there was no evidence to support that the tenants in that case caused the contamination.
In the earlier case of Eren Limited v Louise Martin [2021] NZDC 15210, Judge de Ridder also considered a dispute over who caused the contamination. In that case, the Tribunal had declined the claim for the contamination remediation costs, on various grounds, including that the landlord had not established that the tenant contaminated the premises in the first instance. The appeal to the District Court was by the landlord. In that case, the landlord reports finding evidence of drug use in rubbish left by the tenants, and also that the neighbours had reported the tenants using drugs at the premises. The District Court confirmed that was circumstantial evidence that could be considered by the Tribunal. However, the Court found that the circumstantial evidence was not sufficient to get over the problem of no pre-tenancy methamphetamine testing: However, the significant problem for this claim is that there is no evidence of any methamphetamine testing carried out at the start of this tenancy. If there had been such testing and it revealed no methamphetamine then clearly the methamphetamine residue that was found at the end of this tenancy could only have occurred during the tenancy and could only have occurred by either the tenants using methamphetamine or permitting others to use methamphetamine inside the house. The lack of methamphetamine testing at the start of the tenancy significantly weakens the circumstantial case against the tenants to the point where it is not possible to conclude on the balance of probabilities that it was the tenants who were responsible for the methamphetamine residue located at the premises at the end of their tenancy.
In Yan v Weggery TT 4303380, 12 January 2022 the Tribunal considered a claim for methamphetamine damage where the premises concerned were brand-new at the start of the tenancy. It was accepted that of itself did not prove that there could not have been methamphetamine contamination before the start of the tenancy. The Tribunal noted that methamphetamine use does occur from tradespeople: just like it does in almost any element of society. The fact that the property was new at the start of the tenancy was insufficient to prove that the contamination occurred during the tenancy.
While I am bound by the decisions of higher Courts, I am not bound by previous Tribunal decisions. Each case will fall to be determined on its evidence and facts, some of which may not have been referred to in the decision. Analysis
I accept the in-depth test report and laboratory results as being reliable.
However, the landlord must first prove, to the standard set out above that the contamination occurred during the tenancy.
There was no methamphetamine test conducted at the beginning of the tenancy. The authority set out above makes it clear that the absence of this significantly weakens the landlord’s case against the tenants in this claim.
The landlord is therefore left with circumstantial evidence. The circumstantial evidence presented was that (a) the property was renovated just before the tenant moved in; (b) the tenant put up a camera and added a lock to the laundry door leading to the garage; (c) the tenant was away from the property frequently; (d) the carpet was stained and oven needed cleaning/wasn’t working; (e) there were reports of suspicious behaviour of people visiting day and night.
For the reasons detailed above, I consider that the absence of a pre-let methamphetamine test, prior to or at the start of this tenancy, substantially weakens the circumstantial case against the tenant to the point where it is simply not possible to conclude on the civil balance of probabilities that the tenant is responsible for the methamphetamine residue detected at the premises at the end of the tenancy.
The circumstantial evidence is not sufficient. The landlord was not able to tell me why the carpet or the state of the oven was relevant to methamphetamine use. Cameras are often installed for security and I do not accept this is evidence of methamphetamine use. The evidence presented that people visited at odd times and the fact the tenant was away a lot was not supported by evidence and in any event also does not point to methamphetamine use. Installing a lock is also highly circumstantial evidence and is not sufficient to establish use of the property for methamphetamine.
The submission that the property was newly renovated throughout requires more detailed consideration.
I agree with the decision in Yan v Weggery. In that case the premises concerned were brand-new - here the premises were refurbished by a wide number of different tradespeople. As noted in Yan v Weggery Methamphetamine use does occur from tradespeople: just like it does in almost any element of society. The fact that the property was refurbished at the start of the tenancy is insufficient to prove that the contamination occurred during the tenancy.
Further, this premises is not brand new. The premises have been occupied by others prior to the tenant. There was no evidence to show that the renovations undertaken would have removed methamphetamine residue left from previous occupants.
I accept that some of the features in the property were brand new (such as the kitchen itself and the curtains) but there was no evidence presented on the likelihood (or not) of the new items being contaminated from the premises (which may have already been compromised) or the likelihood of them being contaminated prior to installation.
I find that the landlord has not proven that the tenant used methamphetamine in the premises or that she has breached the non smoking provision in the tenancy agreement.
In any event, to be consistent with the predominance of other Tribunal cases, and the support for these from the District Court, I find that a methamphetamine residue of below 15mcg/100cm2 does not cause damage to residential tenancy premises and does not make a property not reasonably clean unless there is evidence of manufacture.
The level of damage identified by the reports is much less than the 15 μg/100 cm2 and I am not satisfied there is evidence of manufacturing methamphetamine.
The landlord has not proven that the tenant caused damage to the premises or the premises were not left reasonably clean on the basis of methamphetamine. In order to obtain compensation for remedying damage/cleaning due to a tenant breaching a no smoking clause in a tenancy agreement the landlord must show that the tenant is liable for damage/cleaning so this clause in the tenancy agreement does not impact upon my finding.
Therefore, the landlords’ claims for compensation relating to methamphetamine cleaning/damage must be dismissed.
The landlord seeks exemplary damages as the landlord says the tenant has unlawfully used the premises for methamphetamine. The use or possession of methamphetamine is an imprisonable offence. However, the landlord has not proven the tenant’s use or possession of methamphetamine. Therefore, the exemplary damages claim based on methamphetamine use is dismissed.
The landlord also indicated that she thought the tenant might be using the premises for prostitution. The landlord had no evidence of this and pointed to no legislation preventing sex work from home. The landlord has not established there has been unlawful use of the premises by any prostitution.
The landlord’s claim for exemplary damages for unlawful use of the premises is dismissed. Alternation of locks
The landlord claims the tenant has altered the locks without consent.
A landlord must provide and maintain locks to ensure that the premises are reasonably secure. Neither the landlord nor the tenant may alter or remove any locks without the other party's consent. See section 46(1) and (2) RTA.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 46(3) and Schedule 1A RTA.
The landlord says that the tenant added a lock between the laundry and the garage. It is a deadbolt that requires a key. The landlords do not have a key. I accept this evidence as credible as the landlords were able to give detailed information about the lock.
The landlord provided a photograph of the door prior to the tenancy starting with no lock on it. The landlord says that they will have to get the lock removed and fill the hole. The lock was discovered at the end of the tenancy.
By adding a lock I find that the tenant committed an unlawful act. Adding a lock is an alteration to the existing locks.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
I find that adding a lock to a door would have been intentional. It was only discovered at the end of the tenancy so did not stop inspections. I accept the landlord will need to undertake some work in relation to the lock. However, I find it just to award $300.00 for breaching this obligation. Rubbish removal
At the end of the tenancy the tenant must remove all rubbish and goods from the premises. See section 40(1)(e) RTA.
The landlords say that the tenant did not remove all rubbish and personal items at the end of the tenancy. A chilly bin of items and a set of drawers were left and photographs provided. The landlord sought $100 in relation to this. There was no receipt for costs incurred in disposing of these items. The landlords say they did this themselves and it took about an hour. In the absence of proof of disposal costs, I award $25.00 which I consider to be a reasonable sum to award for the landlord’s labour. Other claims
At the hearing the landlord suggested that there may be other claims – such as for the oven and the carpets. I asked if the landlord wanted an adjournment for other claims as they were not included on the application and I explained that the tenant would first need to be given notice of the claims.
The landlord did not want an adjournment. Filing fee
The landlord has had some success and so I award the filing fee. Suppression
The landlord requested I consider name suppression.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case (s 95A(1), RTA).
The landlord has not been substantially successful.
Given the application made by the landlord I have considered if I should grant a name suppression order for the landlord having regard to the interests of the parties and public interest (s95A(4), RTA).
I am mindful that open justice is a fundamental principle in our legal system the issue here I need to consider is whether suppressing the landlord’s name and identifying details outweighs the interest of the open justice reporting principle.
In my view, the landlord’s application for name suppression ought to be declined for the following reasons: a. it is common for parties appearing before the tribunal to seek suppression orders. This is in itself not a sufficient reason to make the order; b. the dispute before me was not unusual or anything other than the ordinary business of the Tribunal; c. the open justice principle requires the outcome of the adjudication to be available to the public; and d. weighing up the interest of the parties and the public interest, the public interest outweighs the parties’ interest.
The landlord’s application for suppression is declined.

Tenancy Tribunal case 4620950 — Exemplary damages at 291B Courtenay Street, Strandon, New Plymouth 4312

At a glance

Tenancy Tribunal case 4620950 — Exemplary damages at 291B Courtenay Street, Strandon, New Plymouth 4312

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions