What was the outcome of Tenancy Tribunal case 4661315?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4661315?

Property Damage: $600.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4661315?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4661315?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9444358-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4661315?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4661315?

Property Damage: $600.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4661315?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4661315?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9444358-Tenancy_Tribunal_Order.pdf.

Unit/Flat 4, 210 Rutherford Street, Nelson, Nelson 7010 Tenancy Tribunal Case 4661315 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4661315 — net $620.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Exemplary damages	$600.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$620.44
Total payable by Tenant to Landlord	$620.44

Claims and awards in Tenancy Tribunal application 4661315 — net $620.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Exemplary damages	$600.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$620.44
Total payable by Tenant to Landlord	$620.44

Order

No suppression orders apply around publication of this decision.
Nikayla Aroha Taylor must pay Andrew Ernest Dunlop $620.44 immediately, calculated as shown in table below:
All other applications are dismissed.

Reasons

Both parties attend the hearing on 21 September 2023. The landlord attended by teleconference.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations, exemplary damages for use of the premises for an unlawful purpose and reimbursement of the filing fee.

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986 (“RTA”).
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant. A breach is not capable of remedy where the thing done, or its effect, cannot be undone.
However, unless the breach is serious, the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate.
The landlord suggests that the tenant has breached her obligations by using methamphetamine at the premises in breach of section 40(2)(b) RTA.
In support of the claim the landlord submitted; • Methamphetamine screening tests taken at the commencement of the tenancy and laboratory results showing a “nil test”. • Methamphetamine screening tests taken on 16 August 2023 and the laboratory results. The composite screening test records that methamphetamine was detected within the 6 samples retrieved from surfaces within the property. The laboratory results dated 17 August 2023 show a methamphetamine maximum potential in a single sample of 5.6 micrograms per 100cm2.
The tenant admitted using methamphetamine at the premises during 2022. The tenant says that she has not used methamphetamine at the premises since September 2022. Since then, the tenant admits, with a degree of honesty, using methamphetamine once in March 2023, but not at the premises.
In support, the tenant provided evidence from her GP, Social Worker, Addiction Clinician and “Legacy Top of the South” a self-empowerment programme for women. Most importantly in my view, the addiction clinician states; “Nikayla no longer drinks alcohol, she stopped using meth in early September 2022, and had a one off lapse and used meth in March this year and has not used since. Intermittent urine drug screen tests have provided clean results that support this, the most recent being on 11 September 2023”.
Although some authorities consider that a breach of a negative covenant is not always incapable of remedy, in Herewini v Housing New Zealand Corporation CIV 2006-069-144 the Court found that possession of cannabis was not a breach incapable of remedy. The Court considered that the offence was minor, and it was not inequitable to refuse to terminate the tenancy.
Section 40(2)(b) provides that, among other matters a tenant shall not use premises, or permit the premises to be used for any unlawful purpose.
As I have found that the evidence and the tenant admission support that view that the tenant used the premises for an unlawful purpose. Having come to that conclusion, I must consider whether it is inequitable to refuse to terminate the tenancy.

Is it inequitable to refuse to terminate the tenancy?

In exercising the discretion under section 56 RTA, I need to consider whether it would be inequitable to refuse to terminate the tenancy.
In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the Court at paragraph 61 set out the factors which are relevant to whether it would be inequitable to refuse to terminate a tenancy: • The history of the tenancy. • Whether there has been a persistent failure after repeated warnings. • Whether the history of breaches was such it was unlikely the tenant would comply with her obligations in the future. • Whether the breach was inadvertent or deliberately committed. • The conduct of the landlord. • The gravity of the breach. • Whether termination is a proportionate response to the breach.
The tenancy began on 8 December 2021. There was no evidence of any other major issues with the tenancy. The landlord expressed concern at volatile argument between the tenant and her partner.
No evidence was proffered by the landlord of any warnings given to the tenant in relation to breaches of this type.
The evidence of the tenant, supported by that of her clinician, is that the tenant is likely to comply with her obligations in the future.
The breach is of a type where the breach was deliberately committed.
There is no evidence of any misconduct by the landlord.
The gravity of the tenant conduct is not as severe as it may otherwise have been.
In May 2018 Professor Sir Peter Gluckman, the then Prime Minister's Chief Science Advisor, released a report "Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards”. The report noted that there is a lack of scientific evidence to prove that low- level third-hand methamphetamine exposure poses a health risk to humans. It stated that guidelines should be proportionate to risk and that exposure to a level below 15μg/100cm 2 was unlikely to have an adverse effect. It recommended retaining the level of 1.5μg/100cm 2 where contamination resulted from manufacture, due to the risk posed by harmful chemicals used in the process.
The Tribunal has generally applied the Gluckman recommendation. This approach was approved by the District Court in Full Circle Real Estate Limited v Piper [2019] NZDC 4947, where the Court stated (at para [36]): “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.”
The District Court took a similar approach in Acme Realty Limited v Hogg and others [2021] NZDC 3231, where the Court referred to the Full Circle case and held that, because NZS 8510:2017 has not been adopted into law, the Tribunal was not bound to apply the 1.5μg standard.
More recently, in Barfoot and Thompson Limited v Kāhui Tū Kaha Limited [2021] NZTT Auckland 4276319, both parties presented scientific evidence at a hearing before the Tribunal. The Tribunal concluded that there was no new scientific research to change the conclusions reached in the Gluckman Report.
In summary, even taken at its worst, the Hills Laboratories report shows a level of contamination of 5.6 micrograms per 100cm2, well below the level where a property is considered damaged. This is not a situation where manufacture of methamphetamine is alleged.
The gravity of a termination of the tenancy for the tenant would be severe. The tenant is trying to get back on her feet and is in receipt of support. It is now a year since the tenant has used methamphetamine at the premises. In my view, the termination of the tenancy would outweigh the seriousness of the breach and would not be a proportionate response.
The application for termination of the tenancy is accordingly dismissed. Exemplary Damages
The landlord has applied for exemplary damages for the tenants admitted use of the premises for an unlawful purpose.
I have already found that the tenant has used the premises for an unlawful purpose, namely methamphetamine use.
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.
It is an offence under the Misuse of Drugs Act 1975 for any person to have in their possession or consume any controlled drug and to allow any premises to be used for the commission of an offence under that Act and (ss 7 and 12). “Methamphetamine” is included as a controlled drug under Schedule 1 of the Misuse of Drugs Act.
The Tenancy Tribunal has previously found, and I agree, that the consumption of methamphetamine on premises amounts to the use of those premises for an unlawful purpose, in breach of section 40(2)(b) RTA
In view of my finding that methamphetamine was consumed at the premises, I find that the premises were used or permitted to be used for an unlawful purpose by the tenants. I therefore find the tenant has committed an unlawful act.
The Residential Tenancies Act has been amended so that the upper limit of any award for exemplary damages under this head is now $1800.00.
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 an award of $600 is appropriate to reflect the public interest in preventing methamphetamine consumption, the fact that consumption is a deliberate act and the stress and frustration it would has undoubtedly caused the owner.
As Andrew Ernest Dunlop has substantially succeeded with the claim I have ordered the tenant to reimburse the filing fee.
No application for name suppression was made by the landlord.
The tenant has applied for name suppression. Section 95A RTA empowers the Tribunal to grant name suppression to a party where that party has been wholly or substantially successful. I do not consider that the tenant has been wholly or substantially successful and her application is declined.
The landlord had asked for the proceedings to be adjourned so that any further claims regarding the condition of the premises could be filed. Those claims are not of the same nature as the issues before the Tribunal today and no further adjournment is granted. That does not of course prevent the landlord from filing any further application relating to this tenancy.

Tenancy Tribunal case 4661315 — Exemplary damages at Unit/Flat 4, 210 Rutherford Street, Nelson, Nelson 7010

At a glance

Tenancy Tribunal case 4661315 — Exemplary damages at Unit/Flat 4, 210 Rutherford Street, Nelson, Nelson 7010

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Is it inequitable to refuse to terminate the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Is it inequitable to refuse to terminate the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions