What was Tenancy Tribunal case 4836864 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 4836864?

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

What type of tenancy dispute was case 4836864?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4836864?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10205831-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4836864 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 4836864?

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

What type of tenancy dispute was case 4836864?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4836864?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10205831-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4836864 — Property damage

Claims and awards in Tenancy Tribunal application 4836864 — 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 4836864 — 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:
All other applications are dismissed.

Reasons

Both parties attended the hearing on 11 April 2024.
[The tenant/s] did not attend the hearing. Telephone calls were made to [The tenant/s] on the number provided at the allocated hearing time. The call went to voicemail. The Tribunal may hear a matter in the absence of a party where satisfied that notice of the hearing has been given. I am satisfied that notice was given.
In light of the manner in which the hearing proceeded, I consider that it is important to note that where there is more than one tenant, all tenants are jointly and severally responsible for the actions of the other tenants. 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 reports and Police statements. 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). In this case, the use of the premises for an unlawful purpose.
The landlord has applied for termination of the tenancy on the grounds that the tenant caused or permitted any person to threaten to assault any neighbour of the premises ( see s.55 (1)(c)(v) 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. Termination for use of premises for an unlawful purpose.
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 premises were a new construction. The tenants were the first residents.
The landlord provided copies of two methamphetamine test results. The testing was carried out by Active Testing Solutions (“ATS”). The results included comprehensive testing laboratory results.
The first test is dated 3 November 2023. Results from 10 samples taken at different areas throughout the house and garage were obtained. All results were positive for methamphetamine, although the bathroom ceiling result at 0.09 micrograms per 100cm2 is relatively low. The other results range from the 0.09 micrograms per 100cm2 referred to above, to the highest at 9.90 micrograms per 100cm2 on the hallway cupboard door.
The second test is dated 27 February 2024. Once again, all results are positive and range from 1.72 micrograms per 100cm2 on the bathroom window frame to 11.3 micrograms per 100cm2 on the garage door frame.
The evidence indicates that at the commencement of the tenancy the presence of methamphetamine would have been nil and that the presence of methamphetamine has occurred during this tenancy. No evidence was proffered by the tenant to the contrary.
The tenant provided a copy of the results of a hair follicle test taken by her in January 2023. The results of that test were negative for any of the drugs tested for, which included methamphetamine. I note that this test was conducted prior to either of the ATS tests and so is of limited assistance.
I am not sure whether the contamination was caused by the tenants or their guests. The tenant said that there were numerous occasions when guests were present at the premises in her absence. The tenant referred to a three month period when she lived away from the premises. As previously indicated, each tenant is jointly and severally responsible for the actions of the other. I do not need to decide who has contaminated the premises. 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 tenant did not suggest in evidence that some unknown person has entered the property without permission and caused the contamination.
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 used methamphetamine.
The landlord goes further, and relies on a report from the Police to suggest that supply of methamphetamine has also taken place from the premises.
The Police report is dated 14 March 2024 and was as a result of an Official Information Act request from the owner.
The relevant portions of the report state: “I can advise that [The tenant/s] will appear in court on 12 April on charges of Sell/Give/Supply/Administer/Deal Methamphetamine and Amphetamine and Possess/Use Methamphetamine and Amphetamine. Methamphetamine was supplied on multiple occasions to persons unknown from [Tenancy address suppressed].”
The burden of proving the claims before the Tribunal falls on the landlord. The only evidence of supplying methamphetamine in breach of the Misuse of Drugs Act put before the Tribunal, is the Police report. No evidence of the usual indica of drug supply has been provided in evidence. The Police report makes reference to charges only. The presumption of innocence applies to the tenant with regards to those charges. The statement in the Police report that supply has occurred is not supported by any evidence. I do not consider that sufficient evidence has been provided to persuade me that it is more likely than not that that the supply of methamphetamine has taken place at the premises.
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.
Having proven that the tenants have committed an unlawful on the premises, namely the use of methamphetamine, I must consider whether it is an act incapable of remedy.
For a breach that is not capable of remedy, there is no requirement for the landlord to give the tenant to notice of the breach. 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.
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.”
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, shows results which are at their worst a little over two thirds of the minimum result for there to be considered damage under the Gluckman level. The results do not suggest any of the indica apparent when manufacture of methamphetamine has occurred. I have found that supply of Methamphetamine has not been proven.
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. 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 by the landlord 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. Termination of tenancy for threatening behaviour
The landlord has applied for termination of the tenancy on the grounds that the tenant caused or permitted any person to threaten to assault any neighbour of the premises ( see s.55 (1)(c)(v) RTA).
The evidence in relation to this matter is contained in the Police report referred to earlier. The report states that “I can advise that a frequent visitor to [Address] was charged with threatening behaviour to a nearby residence of your property at [Tenancy address suppressed].”
A further report from the Police records that the offender has now pleaded guilty and been convicted and sentenced in relation to the charge of threatening behaviour.
The landlord said that the incident occurred on Saturday 17 February 2024. The behaviour was addressed to the neighbour in the adjoining property to [Tenancy address suppressed]. The landlord was not able to provide any further details on what had occurred or who the convicted person was.
The tenant said that the convicted person had previously been to the premises. She was unsure of his name. The tenant said that she had been in Police custody as a result of the drug charges referred to previously in this decision. The tenant says that she was in custody from Friday 16 February 2024 until Monday 19 February 2024. She was unable to provide any further information on what had occurred.
The issue that I must consider is not whether either tenant had threatened the neighbour, but whether a tenant has caused or permitted this other person to threaten the neighbour.
I have no evidence as to the actions of [The tenant/s] on 17 February 2024. The evidence of [The tenant/s] is clear. She could neither have caused or permitted the action as she was in Police custody at the time.
“Cause” is defined as the reason something happens or something that brings about an effect or a result or an agent that brings something about. Each of the definitions would suggest that to cause something to occur requires some positive action.
To definition of permit is to “allow someone to do something, to make possible or to give an opportunity.” Permitting something requires less action on behalf of the tenant party, but still requires a degree of knowledge or acquiescence. A tenant cannot actively allow or permit something if they do not know that it is occurring.
The burden of proving the claim is on the landlord. They must prove the claim to the point where I accept that it is more likely than not. The evidence is presented by the landlord is such that I am not so persuaded and the claim is dismissed.
Both parties have applied for name suppression. Suppression is granted when a party is wholly or substantially successful in the hearing. In this matter, both parties have achieved a degree of success. I consider that both parties have been substantially successful and order suppression of names and details for both parties.
As the landlord has been substantially successful in this hearing, I have ordered the tenant to reimburse the filing fee.

Tenancy Tribunal case 4836864 — Property damage

At a glance

Tenancy Tribunal case 4836864 — 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