What was Tenancy Tribunal case 4834779 about?

The tribunal order states: [The tenant/s] must pay [The landlord/s] $620.44 immediately, calculated as

How much money was awarded in case 4834779?

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

What type of tenancy dispute was case 4834779?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4834779?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10192689-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4834779 about?

The tribunal order states: [The tenant/s] must pay [The landlord/s] $620.44 immediately, calculated as

How much money was awarded in case 4834779?

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

What type of tenancy dispute was case 4834779?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4834779?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10192689-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4834779 — Property damage

Claims and awards in Tenancy Tribunal application 4834779 — net $620.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
General Damages	$600.00	General 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 4834779 — net $620.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
General Damages	$600.00	General Damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$620.44
Total payable by Tenant to Landlord	$620.44

Order

[The tenant/s] must pay [The landlord/s] $620.44 immediately, calculated as shown in table below:
If either party intends to produce any additional documents at the next hearing, they must send two copies to the Tribunal by no later than 4 pm on Friday 19 April 2024.
The hearing of TT 4850462 is adjourned for a 200 minute face to face hearing in front of any adjudicator on the next available date. No evidence in relation to TT 4850462 has been heard.

Reasons

Both parties attended the hearing on 10 April 2024.
The tenancy of the premises is current. General Law
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case the landlord must establish that what they are claiming is more likely than not.
The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.” (the emphasis is mine).
The Tribunal is not governed by the usual laws of evidence. The Tribunal may accept and consider any evidence. What is of importance, is the weight attached to that evidence by the Tribunal. As an example, the Tribunal is likely to attach more weight to evidence from a witness who is present at the hearing and who is available to be cross-examined, as distinct from evidence provided by way of a written statement from a witness who is not present at the hearing.
In this case, both parties have submitted documentary evidence including emails, photos and reports. For the sake of brevity, I have not referred to all the evidence presented, however, the parties can be assured that it has all been carefully considered. Landlord claims
The landlord has applied for termination of the tenancy for a breach of the tenancy agreement or the Residential Tenancies Act 1986 (“RTA”), which cannot be remedied ( see s.56(1)(a) and (c) RTA).
The landlord claims that the tenant has committed an unlawful act at the premises in breach of s.40(2)(b) RTA.
The landlord seeks reimbursement of the filing fee.
The evidence was not greatly in dispute by the respective parties.
The tenancy commenced on 16 December 2022.
A composite methamphetamine screening assessment was carried out by Active Testing Solutions (“ATS”) on the premises on 15 December 2022. [Redacted] from ATS attended the hearing. He confirmed that this first composite tests were from two areas. Test one had a result of 0.30 micrograms per 100 cm2 and from the second test 0.04 micrograms per 100cm2.
[Redacted] confirmed that to all intents and purposes these first test results are a “nil” result, for which no further action to the homeowner is recommended.
A second test was conducted by ATS on the premises on 6 March 2024.
The second test results were a composite test. The results of a composite test show a potential maximum result and an average test result. No comprehensive test was conducted.
Two laboratory composite tests were conducted . The tests results showed a potential maximum result of 4.86 micrograms per 100cm2 and an average of
49 micrograms per 100cm2 in one test and 0.45 micrograms per 100cm2 in the other.
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 Gluckman report”).
The Gluckman report noted the lack of data on the effect of living in a house previously used for smoking methamphetamine (“third-hand” exposure). It stated that, where there is no evidence of manufacturing methamphetamine, exposure to levels below 15mcg/100 cm2 would be highly unlikely to give rise to any adverse effects.
In Full Circle Real Estate Limited v Piper [2019] NZDC 4947 the District Court described the Gluckman report as representing “the current scientific knowledge on the risk to human health from methamphetamine contamination in dwellings” and endorsed the Tenancy Tribunal’s decision to conclude that there was no damage to premises where methamphetamine levels were below 15mcg/100cm2. That approach has been endorsed in subsequent decisions of the District Court. See Acme Realty Ltd v Alexander James Hogg, Tuitui Grace Polotu, Leigh Sharyn Coughlin [2021] NZDC 3231 and Eren Limited v Martin and Kukuruzsnayak [2021] NZDC 15210.
The Tribunal is bound by those District Court decisions.
I consider that the first ATS report confirms that the premises were not contaminated by methamphetamine at the commencement of the tenancy.
I consider that the second ATS report confirms a degree of contamination at the date of testing. As a matter of logic, the contamination in the second report has occurred during the course of this tenancy.
In evidence, the tenants said that neither of them consume methamphetamine. Both tenants are in employment which requires regular drug testing.
The tenants said that during approximately 20 occasions during the course of the tenancy, they had house minders, friends or relations stay at the premises whilst they were not present. I accept the evidence that this has occurred. Accordingly and once again as a matter of logic, if the contamination was not caused by the tenants, it must have been caused by one of their guests.
I am not sure whether the contamination was caused by the tenants or their guests. I do not need to decide that question. Section 41 RTA provides in part that a tenant will be responsible for anything done by any person who is in the premises with the tenant’s permission, if the act would have constituted a breach of the tenancy agreement had it been the act of the tenant.
The tenants did not suggest that any of the house minders, guests or relations were present at the premises without their permission.
In light of the evidence, I consider that the landlord has proven that it is more probable than not that the tenant used or someone at the premises with the tenant’s permission has used methamphetamine .
A tenant must not use, or permit the use of, the premises for any unlawful purpose; section 40(2)(b) RTA.
The use or possession of methamphetamine is an imprisonable offence; see the Misuse of Drugs Act 1975.
The landlord seeks termination of the tenancy for this breach which the landlord says cannot be remedied.
For a breach that is not capable of remedy there is no requirement to give notice. A number of cases have held that a breach of a negative covenant in the tenancy agreement is not capable of remedy. Some examples are: (a) Breach of s 40(2)(b) RTA (premises used for any unlawful purpose) in circumstances where there was allegation of drug use: Clarke v Housing New Zealand DC Blenheim CIV-2008-006-33, 19 March 2008. (b) Breach of s 40(2)(c) RTA (interference with the reasonable peace and privacy of neighbours): Hughes v Housing New Zealand Corporation DC Porirua (no file number), 13 December 2006; Fuavai v Housing New Zealand Corporation DC Manukau CIV-2009-092-679, 24 August 2009; and Aluesi v Housing New Zealand Corporation DC Manukau CIV-2009- 092-662, 24 August 2009.
However, Judge Walker in Terangi v Housing New Zealand Corporation DC Porirua CIV-2010-091-110, 28 June 2010 held (referring to authorities dealing with the cancellation of leases under the Property Law Act 2007 and under comparable legislation in England) that it is not always so that a breach of a negative covenant is incapable of remedy.
The Judge stated that it is necessary to consider the nature of the breach and the tenant’s part in it, including the tenant’s knowledge of it and whether the tenant took immediate steps to stop the breach once becoming aware of it. Whether the stigma that attaches to the premises because of the breach can be removed is also relevant. In Terangi the tenant had excluded her daughter, who had been dealing in drugs from the premises, from the property.
However, Judge Walker held, at [35]–[36], that the breach was not one capable of remedy: “In this case the evidence establishes that the use of the house for drug dealing had been going on for a considerable period of time. It had become known to those who were seeking drugs, methamphetamine in particular, as a place where drugs could be purchased. It is not a single event which has resulted in breach. I have already found that Mrs Terangi permitted this continuing activity. “There is much public distaste of those who deal in drugs and even greater distaste for those who deal in methamphetamine.”
However, Judge Walker suggested that the unlawful activity of smoking cannabis or merely using any other drug may be a breach capable of remedy. He states at [36]: “A house which is used by someone to consume cannabis or use any other drug is unlikely to attract any attention from the neighbourhood. What happens inside is unlikely to be known. It does not create any stigma or bring the landlord into connection with an unlawful activity. While the consumption of cannabis by an occupant would be an unlawful activity I do not consider that such a breach would be incapable of remedy. Using the house for drug dealing is something quite different in character.”
The nature of the breach in this case, in light of the test results, is relatively minor. The results do not suggest any of the indica apparent when manufacture of methamphetamine has occurred. The results indicate a personal use scenario either by the tenants or their guests. No stigma can be attached to the premises where levels remain low. The premises are not considered to be “damaged” as a result of the use (See the Gluckman Report). That draws me to the conclusion that the breach of the tenancy agreement by the tenant and or their guests, was not such that it was incapable of remedy and the application for termination of the tenancy is dismissed.
The landlord claims that the tenant has breached their obligation in both s.40(2)(b) RTA and the tenancy agreement . Those provisions provide that a tenant must not use, or permit the use of, the premises for any unlawful purpose.
I have found that the tenant has breached those provisions. The landlord application does not seek exemplary damages. In Cavanagh v Kainga Ora (2022) NZDC 7003, the District Court said that even where exemplary damages are not or cannot be claimed, the Tribunal, given the broad nature of its jurisdiction, could award general damages to take account of the breach. The breach is not as serious as it could have been. I do not think it appropriate for the damages to be the equivalent of any exemplary damages award. Doing the best that I can to do justice to the parties, I find that the landlord is entitled to damages in the sum of $600.00.
Both parties have applied for name suppression. Neither party can be said to have been wholly successful in this hearing. I consider that both parties have been substantially successful and suppression of both parties names and details is ordered.
As [The landlord/s] has substantially succeeded with the claim, I have ordered the tenant to reimburse the filing fee.
The tenant filed a cross application TT 4850462 against the landlord in the days before this hearing. It was not appropriate, nor was time scheduled, to hear those matters today. They are to be adjourned to the next available face to face hearing date.

Tenancy Tribunal case 4834779 — Property damage

At a glance

Tenancy Tribunal case 4834779 — Property damage

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions