What was Tenancy Tribunal case 4876280 about?

The tribunal order states: Ashleigh Glenda Healy and Jordan Richard Dyer must pay [The landlord/s]

How much money was awarded in case 4876280?

Property Damage: $600.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Cleaning: $1,150.00 awarded to landlord; Property Damage: $185.50 awarded to landlord; Property Damage: $172.60 awarded to landlord; Rent Arrears: $363.57 awarded to landlord; Rubbish Removal: $4.30 awarded to landlord; Water Rates: $74.41 awarded to landlord

What type of tenancy dispute was case 4876280?

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

Where can I read the official tribunal order for case 4876280?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10782104-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4876280 about?

The tribunal order states: Ashleigh Glenda Healy and Jordan Richard Dyer must pay [The landlord/s]

How much money was awarded in case 4876280?

Property Damage: $600.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Cleaning: $1,150.00 awarded to landlord; Property Damage: $185.50 awarded to landlord; Property Damage: $172.60 awarded to landlord; Rent Arrears: $363.57 awarded to landlord; Rubbish Removal: $4.30 awarded to landlord; Water Rates: $74.41 awarded to landlord

What type of tenancy dispute was case 4876280?

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

Where can I read the official tribunal order for case 4876280?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10782104-Tribunal_Order_Redacted.pdf.

4 Heron Crescent, Katikati, Katikati 3129 Tenancy Tribunal Case 4876280 — Property damage

Claims and awards in Tenancy Tribunal application 4876280 — net $1,050.82 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$363.57	Rent arrears
Water rates	$74.41	Water rates
Rubbish removal: Bin Tag	$4.30	Rubbish removal: Bin Tag
Meth testing/Cleaning: Insurance excess	$1,150.00	Meth testing/Cleaning: Insurance excess
Window repairs	$185.50	Window repairs
Lock/key replacement	$172.60	Lock/key replacement
Exemplary damages	$600.00	Exemplary damages
Reimbursement of filing fee	$20.44	Reimbursement of filing fee
Net award	$1,050.82
Total payable by Tenant to Landlord	$1,050.82

Claims and awards in Tenancy Tribunal application 4876280 — net $1,050.82 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$363.57	Rent arrears
Water rates	$74.41	Water rates
Rubbish removal: Bin Tag	$4.30	Rubbish removal: Bin Tag
Meth testing/Cleaning: Insurance excess	$1,150.00	Meth testing/Cleaning: Insurance excess
Window repairs	$185.50	Window repairs
Lock/key replacement	$172.60	Lock/key replacement
Exemplary damages	$600.00	Exemplary damages
Reimbursement of filing fee	$20.44	Reimbursement of filing fee
Net award	$1,050.82
Total payable by Tenant to Landlord	$1,050.82

Order

Ashleigh Glenda Healy and Jordan Richard Dyer must pay [The landlord/s] $1,050.82 immediately, calculated as shown in table below.

Reasons

ATTENDANCES

Both parties attended the hearing.
[The landlord’s representative/s] attended as agent for the owner.
The tenant, Ms Healy attended the hearing. Mr Dyer did not attend the hearing.
The landlord has applied for: a. rent arrears and water rates, b. compensation, c. payment of the bond, and d. reimbursement of the filing fee following the end of the tenancy.
The tenant has applied for refund of the bond.

BACKGROUND

The tenancy commenced on 14 July 2020 and ended on 18 February 2024.
The tenants applied on 15 April 2024 for the bond to be refunded to them.
The landlord filed a cross application on 1 May 2024.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That includes a requirement that the applicant, establish their claims on the balance of probabilities.
The balance of probabilities means more likely than un-likely, 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.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike 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.

RENT ARREARS

How much is owed for rent?

The landlord provided rent records which prove the amount owing at the end of the tenancy was $363.57.
The tenant provided bank statements which reconcile with the date the first payment was made but the tenant did not provide bank statements for the final month of the tenancy. The tenant indicated there may have been some confusion about whether they had paid the final weeks rent in advance.
I have reviewed the rent ledger and accept the landlord’s claim for rent arrears in full.

WATER RATES

How much is owed for water rates?

The landlord provided a final water rates invoice which proved the amount owing is $74.41 and this was not disputed by the tenant.

RUBBISH AND KEY REPLACEMENT

Did the tenant 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) Residential Tenancies Act 1986. Big tag - $4.30
The tenant did not remove all rubbish and by consent I make an order that the tenant pay for a bin tag the landlord purchased to ensure the tenant’s rubbish was removed from the property. Key and lock replacement - $172.60
The landlord claimed the cost of replacing keys and lock of $172.60.
The tenant accepted she lost her set of keys but disputes the amount owing.
The landlord stated she had provided the invoice as part of her application however I reviewed the evidence provided by the landlord during and after the hearing and it had not been included. The invoice was provided during the hearing.
The invoice from the locksmiths was for $341.00. It was not clear how the landlord reached the reduced amount claimed but I accept that key and lock replacement was required, and the tenant was on notice of the amount of the claim before the hearing.
The amount ordered is proved.

DAMAGE

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. Careless damage
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 (or four weeks' market rent in the case of a tenant paying income-related 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 (or market 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. Intentional damage
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: Broken window - $185.50
The landlord claimed the cost of a broken window in the garage.
No photographs were provided of the broken window, however the tenant accepted the window was broken. Ms Healy gave evidence that Mr Dyer accidentally caused the damage when moving out. I am told the window was high in the garage and I consider it must have been damaged through the careless action of the tenant.
The invoice for the glass repair had not been provided before the hearing. The landlord stated she had provided the invoice as part of her application however I reviewed the evidence provided by the landlord during and after the hearing and it had not been provided.
The invoice was provided during the hearing and the tenant was on notice before the hearing of the amount of the claim. The claim was for $185.50 and I make an order for the repair of the broken window.
In this case the insurance excess is $1,150.00 and rent is $430.00 per week, the amounts ordered do not exceed the limits in the RTA.
The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. The amounts ordered is proved.
I do not need to consider betterment and depreciation. The landlord has sought to repair damaged property not to replace damaged property. Damage to doors and cupboards
At the hearing the landlord claimed the costs to repair damaged doors and cupboards. Photographs had been provided and the landlord advised that she had provided a quote to repair the damage however this has yet to be undertaken. I reviewed the Tribunal file during and explained that I there was no quote for the repairs. I also note the application did not include any claim in respect of the damaged doors and cupboards.
Both parties agreed it is appropriate for this matter to be dealt with by further application when the repairs have been undertaken and an invoice can be provided to support the claim.

METHAMPHETAMINE CONTAMINATION

The landlord claims insurance excess of $1,150 in respect of an insurance claim for methamphetamine contamination testing costs.
The landlord seeks these costs from the tenant.
In 2010 the New Zealand Ministry of Health produced guidelines for the remediation of clandestine methamphetamine laboratories and determined that remediation was required if the environmental level of methamphetamine was
5 μg/100 cm 2 . While that related to laboratories, it is the case that the 0.5 level became the de facto level at which premises were considered to require decontamination in New Zealand.
In 2017 the level was increased when Standards New Zealand released Standard NZS 8510:2017 “Testing and decontamination of methamphetamine- contaminated properties”. At that time, this standard set the definitive levels at which properties which had methamphetamine contamination, required remediation. The Standard confirmed that: After seeking expert advice on exposure risk from Environmental Science and Research Ltd (ESR) and the Ministry of Health and reviewing a large number of public comments on a draft of this standard, the committee has decided to set the maximum acceptable level of methamphetamine in an affected property at 1.5 μg/100 cm 2 after decontamination. While this level is greater than the Ministry of Health 2010 guideline value of 0.5 μg/100 cm 2 for properties used as clandestine laboratories, there are a number of reasons why the committee decided to adopt the single value of 1.5 μg/100 cm 2 in this standard.
In short, this standard confirmed that the level at which habitation of residential premises was considered safe, was a level of 1.5 μg/100 cm 2 . The expectation on landlords arising from this Standard, was to remediate premises contaminated with methamphetamine, to a level of less than 1.5 μg/100 cm 2 .
In more recent times, the Prime Minister’s Chief Science Advisor, Professor Sir Peter Gluckman determined that there was little evidence supporting health risks from exposure to residue from methamphetamine consumption (Report entitled ‘Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards’, 29 May 2018). The report concluded that any levels below 15 μg/100 cm 2 were unlikely to present adverse effects: Taken together, these factors indicate that methamphetamine levels that exceed the NZS 8510:2017 clean-up standard of 1.5 μg/100 cm 2 should not be regarded as signalling a health risk. Indeed, exposure to methamphetamine levels below 15 μg/100 cm 2 would be unlikely to give rise to any adverse effects. This level still incorporates a 30-fold safety buffer on a conservative estimate of risk.
In the District Court judgment of Diamond Real Estate Limited v Allan [2017] NZDC 833, Judge Kellar considered a case in which remediation was undertaken in reliance on the 2010 Ministry of Health level of 0.5 μg/100 cm 2 . It is the case that following the remediation work the Standard NZS 8510:2017 was released, which as noted above increased the acceptable level to 1.5 μg/100 cm 2 . Judge Kellar records that when the premises were tested, the highest level recorded was in the toilet at 1.4 μg/100 cm 2 that “exceeded the Ministry of Health guidelines at the time.” The Court confirmed that any consideration as to whether the premises had been damaged, but be based on the prevailing guidelines at that time: ...It appears to be the case that at the time the methamphetamine testing and decontamination was carried out the premises were not safe to occupy in terms of the then prevailing Ministry of Health guidelines. If the landlord had no choice but to test for methamphetamine and decontaminate the premises and if the premises were not ‘safe’ in terms of the prevailing Ministry of Health guidelines at the time of testing then the premises may be said to have been damaged during the term of the tenancy.
At this time there remains a current New Zealand Standard of 1.5 μg/100 cm 2 , and also a current opinion from the Chief Science Advisor that there is no evidence of risk below 15 μg/100 cm 2
The facts of competing levels was considered by the District Court in Full Circle Real Estate Limited v Danielle Piper [2019] NZDC 4947. Judge Kellar needed to determine which level should be applied. The Court discussed the conflict between the New Zealand Standard and Chief Science Advisors report, and confirmed: 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.
I also note the more recent District Court decision of Eren Limited v Martin and Kukuruzsnak [2021] NZDC 15210, in which Judge de Ridder. In that case the Court accepted that the tenants had contaminated the premises with Methamphetamine with the maximum level found to be 9.9 μg/100 cm 2 . The Court noted that the level applied by insurers and the testing industy was 1.5 μg/100 cm 2 . The Court noted that the approach that has been taken by the Tenancy Tribunal was to apply the level as set in the Gluckman report, also noting the above mentioned Full Circle decision, with the Judge concluding: In this case there is no other evidence to counter the conclusions of the Gluckmant Report. Thus it cannot be said that the Tribunal was wrong in the approach it adopted in dismissing the claim for compensation for these matters.
A third District Court decision of relevance is Acme Realty Limited v Hogg, Polotu and Coughlin [2021] NZDC 3231. Judge Harrison noted that “At issue is a short legal point, namely whether New Zealand Standard 8510:2017 has the force for law”. The appeal arose from a decision of the Tenancy Tribunal which applied the Gluckman report level of 15 μg/100 cm 2 . The Court concluded that: ...for the reasons I have given that standard has not been passed into the law of this country and consequently the Adjudicator was not bound by the level it prescribes in reaching her conclusion.
In my assessment, these decisions of the Court have confirmed that the level to be applied is the level expressed by the Chief Science Advisor, which is that there is no risk when levels of contamination are below 15 μg/100 cm 2. Pre-tenancy baseline testing
With any claim before the Tribunal, the onus for establishing the claim sits with the applicant, that is the landlord. It is the landlord that must provide sufficient evidence to prove to the balance of probabilities, that methamphetamine was used in the premises by the tenant, or some person on the tenancy with the tenant’s consent. The balance of probabilities means that what is alleged, is likely to be just over 50% likely to have occurred.
The landlord must establish that it is likely to have occurred during the tenancy. This would need to be by way of pre-tenancy methamphetamine testing being undertaken.
I note the District Court decision of Anthony James Brooking v Colin Imrie [2021] NZDC 16976, Judge Cameron considered a case where the Tenancy Tribunal accepted there was contamination caused by the tenants, in circumstances where there was no pre-tenancy testing performed. The Court considered that there was no evidence to support that the tenants in that case caused the contamination because there was no pre-tenancy testing undertaken. This case
In this case the landlord has established that there was methamphetamine contamination at the end of the tenancy. The levels were below 15 μg/100 cm 2 therefore the Tribunal cannot order remediation costs, which were not sought in any event.
The tenant had no issue with the post-tenancy test which was undertaken by Contaminated Property Investigations NZ Limited (CPINZ) on 14 March 2024
The tenant denies using methamphetamine in the property during the tenancy and suggests the property was contaminated before the tenancy commenced.
I note that only Ms Healy gave evidence on this point. By not attending the hearing I did not have any evidence from Mr Dyer regarding methamphetamine use during the tenancy.
The tenant’s position is that the pre-tenancy testing by Western Bay Meth Detection (report dated 2 July 2020) in this case did not meet the NZ Standard and therefore should not be given any weight.
I have considered the tenants position and while I acknowledge that the test does not specifically record is complied with the NZ Standard, the NZ Standard has not been incorporated into legislation. I have no reason to consider proper baseline testing was not undertaken by Western Bay Meth Detection.
I therefore order the insurance excess of $1,150 as sought by the landlord. Exemplary damages
The landlord seeks exemplary damages on the basis the tenant has used or permitted the premises to be used for a unlawful purposes
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act. In this case the maximum level for a tenant using or permitting premises to be used for unlawful purpose is $1,800.00.
I am satisfied that the tenant’s used or permitted unlawful drug use in the property and did so intentionally. The landlord’s agent gave evidence of the stress this has caused the agent and landlord.
The public interest requires a strong message that they not engage in unlawful activity in a rental home.
I consider an award of exemplary damages of $600.00 (a third of the maximum) is appropriate in this case.

BOND

The tenant had applied for refund of the bond.
The bond is to be paid to the landlord immediately to offset the orders made in favour of the landlord.

FILING FEE

Because the landlord has substantially succeeded with the claim I have reimbursed the filing fee.

SUPPRESSION

The landlord sought suppression and as the application is successful, I have made an order accordingly.
The tenant sought name suppression however having regards to the interests of the parties and the public interest I do not order suppression for the tenant.

FINAL COMMENTS

I confirm that this is the end of the proceedings.
Ms Healy emailed the Tribunal following the hearing indicating she understood the matter had been adjourned. That is not the case – any further claims need to be by way of further applications.

At a glance

At a glance

Award balance

Claims & awards

Order

Reasons

ATTENDANCES

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

RENT ARREARS

How much is owed for rent?

WATER RATES

How much is owed for water rates?

RUBBISH AND KEY REPLACEMENT

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

DAMAGE

Is the tenant responsible for the damage to the premises?

METHAMPHETAMINE CONTAMINATION

BOND

FILING FEE

SUPPRESSION

FINAL COMMENTS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

ATTENDANCES

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

RENT ARREARS

How much is owed for rent?

WATER RATES

How much is owed for water rates?

RUBBISH AND KEY REPLACEMENT

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

DAMAGE

Is the tenant responsible for the damage to the premises?

METHAMPHETAMINE CONTAMINATION

BOND

FILING FEE

SUPPRESSION

FINAL COMMENTS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions