What was Tenancy Tribunal case 4761337 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 4761337?

Cleaning: $410.55 awarded to landlord; Property Damage: $900.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Lawns and Garden Work: $138.00 awarded to landlord; Methamphetamine Testing As Agreed By…: $2,148.20 awarded to landlord; Property Damage: $248.20 awarded to landlord

What type of tenancy dispute was case 4761337?

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

Where can I read the official tribunal order for case 4761337?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11111374-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4761337 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 4761337?

Cleaning: $410.55 awarded to landlord; Property Damage: $900.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Lawns and Garden Work: $138.00 awarded to landlord; Methamphetamine Testing As Agreed By…: $2,148.20 awarded to landlord; Property Damage: $248.20 awarded to landlord

What type of tenancy dispute was case 4761337?

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

Where can I read the official tribunal order for case 4761337?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11111374-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4761337 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4761337 — net $3,885.83 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Lock/key replacement	$248.20	Lock/key replacement
Lawns and Garden work	$138.00	Lawns and Garden work
Cleaning of bathroom & kitchen	$410.55	Cleaning of bathroom & kitchen
Methamphetamine testing as agreed by I McGoon	$2,148.20	Methamphetamine testing as agreed by I McGoon
Exemplary damages for unlawful act	$900.00	Exemplary damages for unlawful act
Filing fee reimbursement 4761337	$20.44	Filing fee reimbursement 4761337
Filing fee reimbursement 4833217	$20.44	Filing fee reimbursement 4833217
Net award	$3,885.83
Total payable by Tenant to Landlord	$3,885.83

Claims and awards in Tenancy Tribunal application 4761337 — net $3,885.83 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Lock/key replacement	$248.20	Lock/key replacement
Lawns and Garden work	$138.00	Lawns and Garden work
Cleaning of bathroom & kitchen	$410.55	Cleaning of bathroom & kitchen
Methamphetamine testing as agreed by I McGoon	$2,148.20	Methamphetamine testing as agreed by I McGoon
Exemplary damages for unlawful act	$900.00	Exemplary damages for unlawful act
Filing fee reimbursement 4761337	$20.44	Filing fee reimbursement 4761337
Filing fee reimbursement 4833217	$20.44	Filing fee reimbursement 4833217
Net award	$3,885.83
Total payable by Tenant to Landlord	$3,885.83

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord name and identifying details.
Isaiah McGoon and Regionald Tukiwaho must pay [The landlord/s] $3,885.83 immediately, calculated as shown in table below:
Clause 2 of the Order of the Tribunal dated 25/1/2024 has been superseded by this Order and is no longer in force and effect. If the landlord has enforced the previous Order, then any enforcement of this Order must reduce the amount owing by $406.64.
The application for further compensation is dismissed.

Reasons

Background

All parties attended both hearings on 22/10 and 19/11, the tenants with their respective lawyers at the second hearing.
The landlord initially sought termination of the tenancy and rent arrears against three tenants, application 4663549.
The tenancy was terminated by the Tribunal on 21/9/2023 and rent arrears, less the bond awarded.
Subsequently one of the tenants applied for a rehearing which was granted in part for the rent arrears on 25/10/2023.
Unfortunately, the rehearing was set down before me on 9/11/2023 and I had to adjourn the matter to be heard by a different adjudicator.
However, because the different adjudicator was unable to contact any of the tenants at the time of the rehearing on 28/11/2023 she confirmed the amount owing jointly and severally against all three tenants.
The other tenant again applied for a rehearing which was granted on 9/10/2024, his name was removed and application 4663549 withdrawn.
The rent arrears claim was to be heard against the two remaining tenants in application 4761337.
On 25/1/2024 the Tribunal awarded the landlord compensation of $406.64 for lock and key replacement and lawns and the filing fee, application 4761337.
Subsequently on 28/3/2024, the other tenant then applied for a rehearing of that Order, application 4761337.
By consent on 3 July 2024 that tenant was removed from both applications on the basis he had not lived at the premises since 2022, application 4761337.
The Order for compensation dated 25/1/2024 is now superseded by this Order.
The landlord then sought from the remaining two tenants exemplary damages for an unlawful act and compensation for remediation of the premises due to methamphetamine contamination, application 4833217.
By agreement in Order dated 22 October 2024 Mr McGoon was ordered to pay the landlord the remaining rent arrears of $379.89 and clause 4 of the Order dated 21 September 2023 was superseded as being of no further force and effect, application 4761337.

Did the tenants 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). The tenants are required to replace worn out smoke alarm batteries. See section 40(1)(ca) Residential Tenancies Act 1986.
The landlord sought compensation of $796.75 as follows: a. $138.00 for mowing of lawns b. $248.20 changing locks c. $410.55 cleaning of bathroom and kitchen.
In support of the claim the landlord provided invoices and entry and exit inspection reports with photographs.
The tenants provided no evidence about whether the premises were left reasonably clean and tidy when they vacated.
I am satisfied from the evidence that the tenants did not leave the premises reasonably clean and tidy, including the lawns.
The tenants also did not return all the keys, albeit that Mr Tukiwaho left his key with Mr McGoon for him to return to the landlord, which did not happen.
Consistent with the Order dated 25/1/2024 awards have been made for the amounts claimed, plus cleaning of $410.55.

Are the tenants responsible for 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 tenants 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.
The landlord claims compensation as follows: a. $12,573.83 for methamphetamine decontamination b. $6,434.25 for replacement of carpets c. $3,310.00 for replacement of curtains and blinds d. $28,980.00 for painting and repair of downpipes e. $13,067.75 for electrical work f. $2,500.00 insurance excess g. $5,338.30 for methamphetamine testing h. Less $27,500.00 insurance payment

What constitutes damage to premises from Methamphetamine?

A tenant must not use 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.
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 tenants 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.
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.
Methamphetamine is a ‘Class A’ drug under the Misuse of Drugs Act 1975. Possession use and cultivation of controlled substances and the use of premises for the commission of an offence are unlawful.
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.
For the tenant to be liable for “making good the damage” the landlord must prove the damage occurred during the tenancy and was the result of an imprisonable offence.
The standard of proof is the civil standard, being on the balance of probabilities.
This means I must be satisfied that what is alleged is more probable than not.
The evidence of the company which carried out testing after the end of the tenancy confirms the presence of methamphetamine during the tenancy.
The landlord confirmed that no methamphetamine testing was undertaken before the tenant moved in therefore there is no certainty that there was no methamphetamine residue before their tenancy.
This absence of evidence means that other evidence is very important and must be strong, see District Court cases Eren Limited v Martin and Kukuruzsnayak [2012] NZDC 15210 and Brooking and Hodges v Imrie [2012] NZDC 16976. Did either tenant use, or allowed someone else to use methamphetamine in the premises during the tenancy?
Mr Tukiwaho was no longer in the premises after 8/2/2023, having been convicted of possession and supply of cannabis but not at the premises, and possession of a methamphetamine utensil.
Mr McGoon remained in the premises until 19/9/2023 when he was convicted of cannabis use and possession of cannabis utensils.
During the period between February and November 2023 Mr McGoon agreed that he had friends and flatmates who stayed at the premises.
In an inspection in June 2023 the landlord identified what they believed was a “meth” pipe in bedroom 1.
I am persuaded by the evidence that it is more probable than not that either one or both tenants, or someone living in the premises with the consent of Mr McGoon used methamphetamine in the premises during the tenancy.

Did the methamphetamine used cause damage to the premises?

Although I have found there was methamphetamine used during the tenancy, the tenants are only liable to pay compensation if that use caused damage to the premises.
The New Zealand Standard 8510:2017 Testing and decontamination of methamphetamine-contained properties (“NZS8510”) recommended an acceptable level of methamphetamine contamination in an affected property of
5ug/100sq for high use areas. Beyond that level a property was regarded as needing decontamination. If a property needed decontamination, then for the purposes of the Residential Tenancies Act the property is damaged.
On 29 May 2018 the Prime Minister’s then Chief Science Advisor Professor Sir Peter Gluckman released a report “Methamphetamine contamination in residential properties: Exposure, risk levels and interpretation of standards” (“the Gluckman Report”). This concluded that, in the case of third hand contact, exposure to methamphetamine levels below 15ug/100sq is unlikely to have an adverse effect.
Further the report noted that levels of 30ug/100sq signified it was likely that manufacturing had taken place.
Since the Gluckman Report many decisions by the Tribunal have found that applicants were unable to prove that methamphetamine contamination below 15ug/100sq posed a health risk and amounted to damage.
This position is consistent with the comments of the Court of Appeal in Smith v Accessible Properties New Zealand Limited [2019] NZCA 38. At paragraph [16] in reference to the Gluckman Report the Court stated, “We acknowledge that the testing in this case yielded results now considered not to raise any health issues and safety concerns.”
Moreover, the District Court in Full Circle Real Estate v Piper [2019] NZDC 4947, when considering an appeal of the Tribunal which adopted the Gluckman Report stated at paragraph [36] stated “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 in Acme Realty Ltd v Alexander James Hogg, Tuitui Grace Polotu, Leigh Sharyn Coughlin [2021] NZDC 3231 considered the specific question of whether the New Zealand Standard NZS8510 had any force of law given it was the current New Zealand Standard around methamphetamine levels in residential dwellings. His Honour Judge Harrison confirmed there was no force of law with the New Zealand Standard.
In summary I accept: a. Methamphetamine residue below 15ug/100sq does not cause damage to residential tenancy premises unless there is evidence of manufacture. b. Where residue is higher than 15ug/100sq in premises or parts of premises there is considered damage and decontamination is appropriate. c. Residue levels of higher than 30ug/100sq indicate a high level of use and may indicate manufacture. Decontamination to the lower level of below
5ug/100sq is justified.
The first composite methamphetamine test was carried out on 22/9/2023 and showed a combined reading for 10 samples of 61ug/100sq.
Subsequently this report was amended and the decomposite results were provided: a. Tube 1 - 35ug for kitchen, lounge, toilet and hallway b. Tube 2 - 24ug for Bedrooms 1, 2 and 3 c. Tube 3 - 0.79ug for garage
Under visual indications of methamphetamine manufacture the report stated, “possibly a few items left at the property could possibly be used.” These words were accompanied by four photographs which were difficult to decipher but appeared to be common household items.
The third methamphetamine test of 12/10/2023 provided a breakdown of 8 room results as follows: a. Kitchen 0.5ug b. Dining room 1.65ug c. Lounge 26ug d. Lounge 33ug e. Hall 30ug f. Hall 21ug g. Toilet 2.6ug h. Bathroom 5.7ug i. Bedroom one 11.1ug j. Bedroom two 1.32ug k. Bedroom three 0.31ug
The report noted there were no visual indications of methamphetamine manufacture.
The final report of 18/12/2023 was after decontamination and showed the following results: a. Dining room 0.6ug b. Lounge 0.16ug c. Lounge 0.02ug d. Hall 0.03ug e. Hall 0.21ug f. Bathroom 0.02ug g. Toilet 0.18ug h. Bedroom one 0.10ug
Applying the Gluckman report recommendations, the methamphetamine levels of 33ug/100sq and 30ug/100sq in the third report in parts of the lounge and hall suggests manufacture may have taken place or been attempted.
The certificates of analysis for all the reports suggest the presence of amphetamine, pseudoephedrine, and ephedrine at various levels in the sample results, including after decontamination cleaning.
Based on the results of the 12/10/2023 report the premises were damaged by methamphetamine residue, and it was prudent for the landlord to decontaminate to the lower 1.5ug level. The owner’s insurer accepted the claim for some of the costs of the work.
However, and despite two readings of 30ug/100sq and over, I am not persuaded by the evidence that it is more likely than not the methamphetamine use during the tenancy included manufacture.
The second report notes the possibility of manufacture but does not explain why the photographs support this.
Indeed, Mr McGoon suggested the pipe the landlord found was a cannabis pipe and not a methamphetamine pipe.
Further the third report specifically excludes any visual indications of manufacture.
There is no explanation provided in any of the reports about what, if any significance the various levels of amphetamine, pseudoephedrine or ephedrine have in determining whether manufacture of methamphetamine took place.
In addition, the absence of any pre-tenancy test means the presence of methamphetamine residue cannot be ruled out.

Should compensation and or exemplary damages be awarded?

Compensation for remediation of the premises is not available to the landlord because the landlord has failed to prove to the necessary standard that the tenants or someone in the premises with their consent, manufactured methamphetamine in the premises causing damage.
However, Mr McGoon agreed to pay the original methamphetamine testing costs sought and an award has been made for these of $2,148.20.
I do not consider it reasonable to award the further testing costs.
As the landlord has proved that the tenants used or permitted other parties to use the premises for an unlawful purpose, the use of methamphetamine, I must consider the issue of exemplary damages.
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.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
I am satisfied that the methamphetamine use was intentional, albeit that the remaining tenant appears to have turned a “blind eye” to its use and that the tenants are responsible.
After taking into account intent, the use or allowing the use of a prohibited drug in rented premises; the effect on and interests of the landlord, significant inconvenience, insurance claim and cost; and the public interest, tenants being discouraged from using premises for unlawful activity; I have awarded half the maximum exemplary damages amounting to $900.00.
Mr Tukiwaho’s lawyer strongly argued that his client should not be held jointly and severally liable as a tenant with Mr McGoon. This was because he had not been in the premises since 8/2/2023 and the landlord did not find the utensil they believed was a meth pipe until four months later.
The original fixed term tenancy agreement from 5/6/2020 to 3/12/2020 was between the landlord and a local charitable institution during which time Mr McGoon resided in the premises. This tenancy was renewed from 4/12/2020 to 2/12/2021.
Another fixed term tenancy was entered into for the period 3/12/2021 to 1/12/2022 between the landlord, Mr McGoon and another tenant.
Mr Tukiwaho signed a variation of this tenancy agreement as a joining tenant on 9/5/2022.
As between himself and the landlord I find the written evidence supports that Mr Tukiwaho is jointly and severally liable with Mr McGoon as a tenant.
There is no evidence to establish that Mr Tukiwaho advised the landlord he was no longer a tenant, or that the landlord knew he had left.
It is not open to the Tribunal to unilaterally sever a joint and several tenancy without the consent of all parties. In this case the landlord declined to consent.
If Mr Tukiwaho has a dispute with Mr McGoon as to who actually owes the debt, then he can persue this in the Disputes Tribunal because it is a tenant/tenant matter over which the Tenancy Tribunal does not have jurisdiction.
As the landlord has been partially successful with the applications, I have awarded the filing fees for both applications.
Suppression is granted to the landlord pursuant to section 95A because they have been partly successful with the claim and suppression has been granted to them in all the previous Orders.
Suppression is not available to the tenants.

Tenancy Tribunal case 4761337 — Exemplary damages

At a glance

Tenancy Tribunal case 4761337 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

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

Are the tenants responsible for damage to the premises?

What constitutes damage to premises from Methamphetamine?

Did the methamphetamine used cause damage to the premises?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

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

Are the tenants responsible for damage to the premises?

What constitutes damage to premises from Methamphetamine?

Did the methamphetamine used cause damage to the premises?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions