What was Tenancy Tribunal case 4636655 about?

The tribunal order states: An application for suppression has been made in this case and the Tribunal

How much money was awarded in case 4636655?

Cleaning: $908.50 awarded to landlord; Property Damage: $1,500.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Loss Of Rent: $2,240.00 awarded to landlord; Property Damage: $405.00 awarded to landlord; Property Damage: $333.50 awarded to landlord; Rubbish Removal: $169.07 awarded to landlord

What type of tenancy dispute was case 4636655?

The primary dispute was Exemplary damages. Related themes: Cleanliness, Property damage.

Where can I read the official tribunal order for case 4636655?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9912123-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4636655 about?

The tribunal order states: An application for suppression has been made in this case and the Tribunal

How much money was awarded in case 4636655?

Cleaning: $908.50 awarded to landlord; Property Damage: $1,500.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Loss Of Rent: $2,240.00 awarded to landlord; Property Damage: $405.00 awarded to landlord; Property Damage: $333.50 awarded to landlord; Rubbish Removal: $169.07 awarded to landlord

What type of tenancy dispute was case 4636655?

The primary dispute was Exemplary damages. Related themes: Cleanliness, Property damage.

Where can I read the official tribunal order for case 4636655?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9912123-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4636655 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4636655 — net $5,576.51 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Methamphetamine cleaning	$908.50	Methamphetamine cleaning
Window repairs	$405.00	Window repairs
Rubbish removal	$169.07	Rubbish removal
Lock/key replacement	$333.50	Lock/key replacement
Loss of rent	$2,240.00	Loss of rent
Exemplary damages	$1,500.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,576.51
Total payable by Tenant to Landlord	$5,576.51

Order

An application for suppression has been made in this case and the Tribunal orders suppression of the landlord’s name and identifying details.
David Ian Ballinger must pay [The landlord/s] $5,576.51 immediately, calculated as shown in the table below.

Reasons

This application was scheduled as an in-person hearing at [Event location suppressed] on 30 January 2024. Mr Ballinger did not attend the hearing and it went ahead in his absence.
The landlord has applied for compensation and reimbursement of the filing fee following the end of the tenancy.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986.
I accept the evidence showing that the tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
I also accept that the tenant did not return the keys.
The amounts ordered are proved.

Is the tenant responsible for the damage to the premises?

A landlord must prove that 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. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
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) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The following damage was caused during the tenancy: 4 broken windows and methamphetamine contamination. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
The amount ordered to repair the windows is proved. Methamphetamine Contamination
The background to the Tribunal’s consideration of claims relating to methamphetamine contamination is as follows.
Since 2015 the Tribunal has received increasing numbers of applications involving “methamphetamine contamination”. Along with the increasing number of applications to the Tribunal, various guidelines have been used to determine the level at which levels of methamphetamine become unsafe. In 2015, the only available government policy was the 2010 Ministry of Health Guidelines for the Remediation of Clandestine Laboratory Sites. These guidelines set the safe level, post-remediation, of a clandestine laboratory at .5mu/100 cm 2 .
In 2016 the Ministry of Health released the “Interim Guidelines” which maintained the .5 level for premises where methamphetamine had been manufactured, but raised the safe level for premises where methamphetamine had only been smoked, implementing a level of 2.0/100 cm2 for uncarpeted areas and 1.5mu/100 cm 2 for carpeted areas.
In July 2017, ESR, the Crown Research Institute, released NZS8510:2017. This report set one level – 1.5mu/100 cm2 and this became the standard that in general, the Tenancy Tribunal applied in cases before it relating to methamphetamine contamination.
However, in May 2018, Professor Sir Peter Gluckman, the then-Chief Scientific Advisor in the Office of the Prime Minister, released a report indicating that the previous guideline was unnecessarily risk averse. Noting the findings of various overseas reports, the report’s authors conclude that there is currently no evidence that methamphetamine levels typically resulting from third hand exposure to smoking residues on household surfaces can elicit an adverse health effect. They recommended that below 15mu/100cm 2 methamphetamine levels would be unlikely to give rise to any adverse effects.
With regard to this application, the landlord has claimed $2,500.00 under this heading, that being the excess payable to their insurer for remediation of the entire premises tenanted by Mr Ballinger for approximately 7 years.
The landlord has supplied a report from [Testing Company] to support this part of their application. A representative from [Testing Company], [Testing Company representative/s], attended the hearing as a witness.
Of the 10 samples taken from various locations throughout the house, the levels of methamphetamine contamination ranged from 2.8mu/100cm 2 to
7mu/100cm 2 . This higher level of 15.7mu/100cm 2 was recorded in a sample taken on the hallway door.
The applicants stated that the tenant ought to pay the entire cost to them of having the whole house remediated – that is, their insurance excess of $2,500.00.
To support this claim their witness, [Testing Company representative/s], made a number of statements including: (a) Kainga Ora’s interpretation of the Gluckman report, referred to below, is that premises which have a reading of anything above 1.5mu/100cm 2 requires the entire premises to be remediated; and (b) Kainga Ora is a government agency and therefore represents the Government’s interpretation of the Gluckman report. This means that the Tenancy Tribunal is obliged to follow this interpretation and order the costs of remediation of the entire premises; and (c) [Testing Company representative/s] has seen first hand the significant health issues impacting people who have been living in premises which have recorded levels below the 15mu/100cm 2. level. As a result of these observations he considers that the lower level of 1.5mu/100cm 2 as outlined in the 2017 ESR report (NZS8510:2017) ought to be the standard applied when considering the costs of remediation payable by the tenant; and (d) Paragraph 6.3 of the Gluckman report itself notes that where lower levels are detected, remediation down to 1.5mu/100cm 2 may be prudent.
I am dismissing that part of this claim which requires the tenant to pay the insurance excess of the costs of remediating the entire premises. This is largely because the Tenancy Tribunal is bound by decisions of the District Court Those decisions have adopted the 15mu/100cm 2 level (the Gluckman level) as being the appropriate standard to apply in terms of the requirement for remediation. See Full Circle Real Estate Limited v Danielle Piper [2019] NZDC 4947 and Erin Ltd v Martin and Kukuruzsnayak [2021] NZDC 15210.
While I accept that Kainga Ora and other agencies remediate the entire premises if tests show any levels above 1.5mu/100cm 2 this does not mean either that they require tenants to pay the costs of remediation, or that their adoption of this interpretation binds the Tenancy Tribunal in coming to the same conclusion.
I also note that [Testing Company representative/s]’s reference to paragraph
3 is not an accurate representation of the Gluckman report’s recommendations. The report states that remediation down to 1.5mu/100cm 2 may be prudent “ if there is also sound reason to suspect previous meth lab activities”. No evidence was provided at the hearing indicating that meth lab activities had taken place at these particular premises and so this recommendation does not apply.
As a consequence of my findings above, I consider that the tenant ought to pay the cost of remediating that part of the premises which show a level greater than 15mu/100cm 2 , that is, the hallway. I have assessed this area to be approximately 5% of the entire area and so the tenant is required to pay 5% of the $18,700.00 it cost to remediate the entire premises – that is, $908.50. Using the premises for an unlawful purpose
A tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) Residential Tenancies Act 1986.
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 Residential Tenancies Act 1986.
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) Residential Tenancies Act 1986.
Using methamphetamine at these premises is obviously an unlawful act and Mr Ballinger is therefore subject to an award of exemplary damages.
In coming to an award of $1,500.00 in exemplary damages I have taken into account the factors as outlined in s109(3).
The use of methamphetamine at the premises was obviously intentional.
I do not know of the tenant’s intent in doing so since he did not attend the hearing.
I accept that the use of methamphetamine at the premises caused considerable stress to the landlord. A police report indicates that there was police attendance at the premises 14 times within a period of 12 months (resulting in 2 drug related convictions) and that there was a gang presence at the house.
Further to tis there is considerable public interest in tenants abiding by their obligations under the Residential Tenancies Act 1986. I consider that this is particularly so in situations such as these where using premises for an unlawful act has no doubt had a negative impact on the community. I note that in this regard there were reports of intimidation of neighbours. Loss of rent
The landlord has claimed 8 weeks’ loss of rent from the tenant based on the number of weeks it took to get the property ready for a new tenant.
The Tribunal does not routinely grant applications for loss of rent because there is an expectation that premises are not continuously rented out. The landlord is running a business and ought therefore to take into account that between tenancies there is most likely to be a period of time during which the tenancy is perhaps being readied for new tenants, or because it may take some time to obtain new tenants.
However, given the fact that it took eight weeks to get these premises ready for a new tenant as a result of methamphetamine contamination I am ordering Mr Ballinger to pay 4 weeks’ rent in compensation. In coming to this amount I have taken into account the expected and routine ‘down’ period between tenancies and the fact that there was some delay in testing because of the Christmas period. Filing fee reimbursement
I am also ordering Mr Ballinger to reimburse the filing fee to the landlord because the landlord has substantially succeeded in the claim against him. Suppression of landlord’s name
Section 95A of the Residential Tenancies Act 1986 provides that: (1) The Tribunal may, on the application of any party to the proceedings or on its own initiative, having regard to the interests of the parties and to the public interest order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. (2) An order may be subject to any conditions that the Tribunal considers appropriate. (3) If a party that has wholly or substantially succeeded in the proceedings applies for an order that their name or identifying particulars not be published, the Tribunal must make the order 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.
I am ordering suppression of the landlord’s name because they have applied for it and because they were substantially successful in the proceedings – s95A(3). C ter Haar 30 January 2024

Claims and awards in Tenancy Tribunal application 4636655 — net $5,576.51 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Methamphetamine cleaning	$908.50	Methamphetamine cleaning
Window repairs	$405.00	Window repairs
Rubbish removal	$169.07	Rubbish removal
Lock/key replacement	$333.50	Lock/key replacement
Loss of rent	$2,240.00	Loss of rent
Exemplary damages	$1,500.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,576.51
Total payable by Tenant to Landlord	$5,576.51

Order

An application for suppression has been made in this case and the Tribunal orders suppression of the landlord’s name and identifying details.
David Ian Ballinger must pay [The landlord/s] $5,576.51 immediately, calculated as shown in the table below.

Reasons

This application was scheduled as an in-person hearing at [Event location suppressed] on 30 January 2024. Mr Ballinger did not attend the hearing and it went ahead in his absence.
The landlord has applied for compensation and reimbursement of the filing fee following the end of the tenancy.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986.
I accept the evidence showing that the tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
I also accept that the tenant did not return the keys.
The amounts ordered are proved.

Is the tenant responsible for the damage to the premises?

A landlord must prove that 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. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
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) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The following damage was caused during the tenancy: 4 broken windows and methamphetamine contamination. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
The amount ordered to repair the windows is proved. Methamphetamine Contamination
The background to the Tribunal’s consideration of claims relating to methamphetamine contamination is as follows.
Since 2015 the Tribunal has received increasing numbers of applications involving “methamphetamine contamination”. Along with the increasing number of applications to the Tribunal, various guidelines have been used to determine the level at which levels of methamphetamine become unsafe. In 2015, the only available government policy was the 2010 Ministry of Health Guidelines for the Remediation of Clandestine Laboratory Sites. These guidelines set the safe level, post-remediation, of a clandestine laboratory at .5mu/100 cm 2 .
In 2016 the Ministry of Health released the “Interim Guidelines” which maintained the .5 level for premises where methamphetamine had been manufactured, but raised the safe level for premises where methamphetamine had only been smoked, implementing a level of 2.0/100 cm2 for uncarpeted areas and 1.5mu/100 cm 2 for carpeted areas.
In July 2017, ESR, the Crown Research Institute, released NZS8510:2017. This report set one level – 1.5mu/100 cm2 and this became the standard that in general, the Tenancy Tribunal applied in cases before it relating to methamphetamine contamination.
However, in May 2018, Professor Sir Peter Gluckman, the then-Chief Scientific Advisor in the Office of the Prime Minister, released a report indicating that the previous guideline was unnecessarily risk averse. Noting the findings of various overseas reports, the report’s authors conclude that there is currently no evidence that methamphetamine levels typically resulting from third hand exposure to smoking residues on household surfaces can elicit an adverse health effect. They recommended that below 15mu/100cm 2 methamphetamine levels would be unlikely to give rise to any adverse effects.
With regard to this application, the landlord has claimed $2,500.00 under this heading, that being the excess payable to their insurer for remediation of the entire premises tenanted by Mr Ballinger for approximately 7 years.
The landlord has supplied a report from [Testing Company] to support this part of their application. A representative from [Testing Company], [Testing Company representative/s], attended the hearing as a witness.
Of the 10 samples taken from various locations throughout the house, the levels of methamphetamine contamination ranged from 2.8mu/100cm 2 to
7mu/100cm 2 . This higher level of 15.7mu/100cm 2 was recorded in a sample taken on the hallway door.
The applicants stated that the tenant ought to pay the entire cost to them of having the whole house remediated – that is, their insurance excess of $2,500.00.
To support this claim their witness, [Testing Company representative/s], made a number of statements including: (a) Kainga Ora’s interpretation of the Gluckman report, referred to below, is that premises which have a reading of anything above 1.5mu/100cm 2 requires the entire premises to be remediated; and (b) Kainga Ora is a government agency and therefore represents the Government’s interpretation of the Gluckman report. This means that the Tenancy Tribunal is obliged to follow this interpretation and order the costs of remediation of the entire premises; and (c) [Testing Company representative/s] has seen first hand the significant health issues impacting people who have been living in premises which have recorded levels below the 15mu/100cm 2. level. As a result of these observations he considers that the lower level of 1.5mu/100cm 2 as outlined in the 2017 ESR report (NZS8510:2017) ought to be the standard applied when considering the costs of remediation payable by the tenant; and (d) Paragraph 6.3 of the Gluckman report itself notes that where lower levels are detected, remediation down to 1.5mu/100cm 2 may be prudent.
I am dismissing that part of this claim which requires the tenant to pay the insurance excess of the costs of remediating the entire premises. This is largely because the Tenancy Tribunal is bound by decisions of the District Court Those decisions have adopted the 15mu/100cm 2 level (the Gluckman level) as being the appropriate standard to apply in terms of the requirement for remediation. See Full Circle Real Estate Limited v Danielle Piper [2019] NZDC 4947 and Erin Ltd v Martin and Kukuruzsnayak [2021] NZDC 15210.
While I accept that Kainga Ora and other agencies remediate the entire premises if tests show any levels above 1.5mu/100cm 2 this does not mean either that they require tenants to pay the costs of remediation, or that their adoption of this interpretation binds the Tenancy Tribunal in coming to the same conclusion.
I also note that [Testing Company representative/s]’s reference to paragraph
3 is not an accurate representation of the Gluckman report’s recommendations. The report states that remediation down to 1.5mu/100cm 2 may be prudent “ if there is also sound reason to suspect previous meth lab activities”. No evidence was provided at the hearing indicating that meth lab activities had taken place at these particular premises and so this recommendation does not apply.
As a consequence of my findings above, I consider that the tenant ought to pay the cost of remediating that part of the premises which show a level greater than 15mu/100cm 2 , that is, the hallway. I have assessed this area to be approximately 5% of the entire area and so the tenant is required to pay 5% of the $18,700.00 it cost to remediate the entire premises – that is, $908.50. Using the premises for an unlawful purpose
A tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) Residential Tenancies Act 1986.
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 Residential Tenancies Act 1986.
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) Residential Tenancies Act 1986.
Using methamphetamine at these premises is obviously an unlawful act and Mr Ballinger is therefore subject to an award of exemplary damages.
In coming to an award of $1,500.00 in exemplary damages I have taken into account the factors as outlined in s109(3).
The use of methamphetamine at the premises was obviously intentional.
I do not know of the tenant’s intent in doing so since he did not attend the hearing.
I accept that the use of methamphetamine at the premises caused considerable stress to the landlord. A police report indicates that there was police attendance at the premises 14 times within a period of 12 months (resulting in 2 drug related convictions) and that there was a gang presence at the house.
Further to tis there is considerable public interest in tenants abiding by their obligations under the Residential Tenancies Act 1986. I consider that this is particularly so in situations such as these where using premises for an unlawful act has no doubt had a negative impact on the community. I note that in this regard there were reports of intimidation of neighbours. Loss of rent
The landlord has claimed 8 weeks’ loss of rent from the tenant based on the number of weeks it took to get the property ready for a new tenant.
The Tribunal does not routinely grant applications for loss of rent because there is an expectation that premises are not continuously rented out. The landlord is running a business and ought therefore to take into account that between tenancies there is most likely to be a period of time during which the tenancy is perhaps being readied for new tenants, or because it may take some time to obtain new tenants.
However, given the fact that it took eight weeks to get these premises ready for a new tenant as a result of methamphetamine contamination I am ordering Mr Ballinger to pay 4 weeks’ rent in compensation. In coming to this amount I have taken into account the expected and routine ‘down’ period between tenancies and the fact that there was some delay in testing because of the Christmas period. Filing fee reimbursement
I am also ordering Mr Ballinger to reimburse the filing fee to the landlord because the landlord has substantially succeeded in the claim against him. Suppression of landlord’s name
Section 95A of the Residential Tenancies Act 1986 provides that: (1) The Tribunal may, on the application of any party to the proceedings or on its own initiative, having regard to the interests of the parties and to the public interest order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. (2) An order may be subject to any conditions that the Tribunal considers appropriate. (3) If a party that has wholly or substantially succeeded in the proceedings applies for an order that their name or identifying particulars not be published, the Tribunal must make the order 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.
I am ordering suppression of the landlord’s name because they have applied for it and because they were substantially successful in the proceedings – s95A(3). C ter Haar 30 January 2024

Tenancy Tribunal case 4636655 — Exemplary damages

At a glance

Tenancy Tribunal case 4636655 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions