Published tribunal order
Tenancy Tribunal case 4661316 — Exemplary damages
Decided 19 Oct 2023 · Published 19 Oct 2023 · Application 4661316
- Exemplary damages
- Rent arrears
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord’s name and identifying details.
- Marie Ann Mitchell must pay [The landlord/s] $1,223.43 immediately, calculated as shown in table below. DescriptionLandlord Rent arrears$260.00 Replace furnishings: curtains and blinds$1,902.99 Exemplary damages - using premises for unlawful purpose $600.00 Filing fee reimbursement$20.44 Total award$2,783.43 Bond-$1,560.00 Total payable by Tenant to Landlord$1,223.43
- The Bond Centre is to pay the bond of $1,560.00 ([Bond number suppressed]) to [The landlord/s] immediately.
- The landlord’s application for methamphetamine decontamination costs is dismissed.
Reasons
- Only the landlord attended the hearing. Shortly before the hearing, the tenant indicated that she wanted an adjournment of hearing. No reasons for the request were provided and the application was declined.
- The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
How much is owed for rent?
- The tenancy ended on 8 July 2023. The landlord provided rent records which prove the amount owing at the end of the tenancy.
- I am satisfied the amounts owing 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. 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. 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: a. Damage to curtains and blinds throughout the house. b. Methamphetamine contamination of the premises. Curtains and blinds
- In relation to the curtains and blinds, the damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
- The amounts ordered are proved.
- I have taken into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Specifically, the estimated life span of curtains and blinds is 8 years. The landlord accepts that the curtains and blinds are at least 5 years old. I have used that age to calculate the depreciated value and awarded that amount. Methamphetamine contamination
- Following the end of the tenancy, methamphetamine testing was done by [Testing Lab].
- The results showed seven rooms above 1.5ug per 100cm3 and the highest reading was 13.4ug per 100cm3.
- This would indicate that the methamphetamine contamination did occur.
- However, for the landlord to recover the costs of methamphetamine decontamination it must reach the legal level for “damage” which is generally considered contamination a 15ug per 100cm3 or higher as set out in the “Gluckman Report” and adopted by the Court in the case of Full Circle Real Estate Limited v Danielle Piper 2019 NZDC 4947 CIV-2018-0092490 where it said that the “Gluckman report represents the current scientific knowledge to the risk to human health from methamphetamine contamination in dwellings”.
- None of the test results are above the “Gluckman Report” level of contamination.
- While there was some evidence of contamination, the landlord has not proven on the balance of probabilities that was to such a degree that it constitutes damage to the property.
- Further, the landlord has not provided pre-tenancy methamphetamine tests, to confirm that the property was clear of contamination prior to the tenancy.
- It is for these reasons that the tenant’s claim for damages arising out of methamphetamine contamination are dismissed as they are not proven. Exemplary damages
- The landlord claims the tenant has used the premises unlawfully, by consuming, or allowing others to consume methamphetamine in the premises.
- A tenant must not use the premises or permit the premises to be used for an unlawful purpose.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00.
- It is unlawful to possess or consume methamphetamine under the Misuse of Drugs Act 1975.
- Given the concentration of methamphetamine were highest in the hall, dining room and kitchen. There are areas where the people would only tend to congregate at the invitation of the tenant, or with tenant’s knowledge.
- In addition to the methamphetamine contamination reports, the landlord provided a police statement confirming that an occupant of the address was charged with possessions of methamphetamine for supply and was arrested at the address.
- I consider that it is likely that the tenant or an occupant has consumed methamphetamine at the property or allowing other people to consume methamphetamine at the property. I find they have committed an unlawful act.
- 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.
- I consider that the levels if methamphetamine recorded, while not at the level of damage, do indicate the deliberate consumption of unlawful drugs at the premises.
- The impact on the landlords has included the emotional and financial stress of the testing and decontamination process.
- I consider that this is an appropriate case for exemplary damages, and I award $600.00 Filing Fee
- Because [The Landlord/s] has substantially succeeded with the claim I have reimbursed the filing fee.