What was Tenancy Tribunal case 4953433 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 4953433?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4953433?

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

Where can I read the official tribunal order for case 4953433?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12233710-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4953433 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 4953433?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4953433?

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

Where can I read the official tribunal order for case 4953433?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12233710-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4953433 — Exemplary damages

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New Zealand Tenancy Tribunal Case 4953433 — Exemplary damages | TenantCheck

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
The Bond Centre is to pay $2,355.00 of the bond ([Bond number suppressed]) to [The landlord/s] immediately. The Bond Centre is to pay $765.00 of the bond ([Bond number suppressed]) to Shania Hoang immediately, as per the table below:

Reasons

Introduction

In May 2023, the tenant and her children moved into the landlord’s townhouse. After the tenant had lived there for nine months, the landlord ended the tenancy shortly after a comprehensive test for methamphetamine revealed several rooms in the house had methamphetamine contamination at levels that posed a risk to people’s health. The tenancy was terminated on the basis the premises were uninhabitable due to methamphetamine contamination. The notice gave the tenant seven days to move out of the premises.
The tenant denies contaminating the premises with methamphetamine and filed a claim in the Tribunal alleging the manner in which the tenancy came to an end was not lawful. The tenant also says the landlord should compensate her for renting premises that were not adequately heated and were poorly maintained during the tenancy.
In a counterclaim, the landlord says the tenant is responsible for the methamphetamine contamination and should compensate the landlord for the cost of decontaminating the premises and replacing contaminated carpet. In addition, the landlord says the tenant should pay exemplary damages for using the premises to smoke (or allowing others to smoke) methamphetamine. The landlord also says the tenant failed to adequately fix a broken window in the garage and caused damage to interior walls. The issues for me to determine are: a. Has the tenant proved the landlord terminated the tenancy without grounds? b. Has the tenant proved the landlord breached the Healthy Homes

Standards in relation to heating?

c. Has the tenant proved the landlord failed to maintain the premises? d. Has the landlord proved the tenant damaged the premises by contaminating it with methamphetamine? e. Has the landlord proved the tenant used the premises for an unlawful purpose? f. Has the landlord proved the tenant failed to replace the broken window in the garage to a reasonable standard? g. Has the landlord proved the tenant is liable for the cost of repairing damage to interior walls?

After determining those substantive issues, I must also determine whether the landlord is entitled to reimbursement of the filing fee, and whether the landlord’s name should be suppressed. Burden and standard of proof
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.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fraction 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.

Has the tenant proved the landlord terminated the tenancy without grounds?

Shania Hoang claims on 16 February 2024 the landlord gave the tenant notice to terminate the tenancy knowing that they were not entitled to under the RTA to give the notice.
A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant knowing that they are not entitled, under the RTA, to give the notice. See section 60AA of the RTA. Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $6,500.00. See section 60AA and Schedule 1A of the RTA.
The tenant says on 16 February 2024 the landlord issued a notice to terminate the tenancy stating the end of the tenancy would be 7 days later, on 23 February 2024 on the basis the premises were uninhabitable. 1 The tenant’s complaint is: a. The notice to terminate was issued 17 weeks after the initial screening testing conducted on 17 November 2023 found methamphetamine present in the premises. The tenant says the comprehensive testing (carried out on 5 February 2024) should have been completed sooner. b. The tenant challenges the landlord’s determination that the premises was uninhabitable. The tenant says only the Council, or some other official, can deem a premises uninhabitable. 1 Section 59(1) and (2).
As to the first ground, the tenant says the landlord should have completed a comprehensive test for methamphetamine sooner as it placed her and her children at risk. The tenant says the first test conducted on 17 November 2023 found “extremely high” levels of methamphetamine but that she chose to wait for a more in-depth test to be completed. 2
On receiving the results of the first test conducted on 17 November 2023, the tenant could have issued her own notice to end the tenancy in 28 days. 3 The tenant chose not to. There is no requirement that a landlord conduct testing for methamphetamine. The tenant’s complaint that she and her family were exposed to potential methamphetamine contamination for an unnecessary period is without foundation, and does not render the notice that was issued on 16 February 2024 unlawful.
As to the second ground, I am satisfied the premises were correctly deemed uninhabitable by the landlord. In May 2018, the Chief Science Advisor, Professor Sir Peter Gluckman determined there is little evidence supporting health risks from exposure to residue from methamphetamine below 15μg/100cm 2 (the Gluckman level), 4 and therefore, it is generally accepted that levels above 15μg/100cm 2 do pose the risk of adverse health effects. 5
The premises is a three-storey, two-bedroom, one bathroom townhouse. On 5 February 2024, a comprehensive test for methamphetamine was conducted at the premises and found methamphetamine contamination levels of: a. 30.80μg/100cm 2 and 34.30μg/100cm 2 in the garage on the ground floor; b. 24.00μg/100cm 2 in the bathroom on the middle floor; and c. 22.30μg/100cm 2 in the open plan kitchen/dining/lounge on the upper floor.
Each of those rooms, on each of the three levels of the premises, are above the Gluckman level. Given those results, I am satisfied the high levels of methamphetamine found in the premises, on all three levels, including in the only bathroom and only kitchen/living/dining area, rendered the premises uninhabitable.
It follows that I find that on 16 February 2024 the landlord issued a lawful notice to terminate the tenancy. 2 The results of the 17 November 2023 testing were not produced by either party. It was not in dispute that that testing was a screening test which indicated methamphetamine was present but did not provide a detailed analysis of the levels of contamination in individual rooms. 3 The fixed term tenancy expired on 6 November 2023. The tenant could therefore terminate the periodic tenancy by giving 28 days’ notice, pursuant to s51(2) of the RTA as it was at that time. 4 Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards, 29 May 2018. 5 See Full Circle Real Estate Limited v Danielle Piper [2019] NZDC 4947; Eren Limited v Martin and Kukuruzsnak [2021] NZDC 15210; Acme Realty Limited v Hogg, Polotu and Coughlin [2021] NZDC 3231.
I dismiss the tenant’s claim for exemplary damages for unlawful termination. Has the tenant proved the landlord breached the Healthy Homes Standards in relation to heating?
At the hearing, the tenant accepted an exemption applied to the premises and the tenant did not pursue the claim that the landlord had breached the Healthy Homes Standards (HHS) in relating to heating.
I dismiss the tenant’s claim for exemplary damages in relation to HHS.

Has the tenant proved the landlord failed to maintain the premises?

Shania Hoang claims the landlord breached their obligations under section 45 of the RTA. Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.
Breaching that obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A of the RTA.
The tenant says the landlord failed to maintain the following: a. Heated towel rail in the bathroom: the tenant says the heated towel rail wasn’t working properly. b. Power outlet in the bedroom: the tenant says a charger plugged into the outlet melted due to a fault in the power outlet. c. Leak under the laundry sink: the tenant says the pipe bringing hot water to her washing machine leaked. d. Balcony door: the tenant says the balcony door was not fixed for several months.
I am not satisfied the tenant has proved it more likely than not that the landlord failed to maintain the above items in a reasonable time after being notified by the tenant.
The reason for my finding in respect of each claim is set out below: a. Heated towel rail: the tenant says in the first three months of the tenancy she reported the towel rail was not working. The tenant says an electrician attended in late June 2023, but that no work was done. The landlord produced records that an electrician attended on 25 October 2023 and reported the heated towel rail was working and in good condition. The electrician provided a quote to replace the heated towel rail with a new one, but reported to the landlord it would be for cosmetic reasons only as the current rail was working. I am not satisfied the tenant has proven the heated towel rail was not working in condition. b. Power outlet in bedroom: the tenant says on 9 February 2024 her son’s tablet was plugged into the power outlet in the bedroom. The tenant says when she came home she found the tablet’s power charger had melted. A photograph of the damaged tablet charger was produced as evidence the issue was reported to the landlord that day. The landlord says the tenant had previously reported issues with sparks from a charger plugged into a different outlet in the lounge, and produced a record to show an electrician attended on 10 September 2023 who tested the lounge outlet and found the power supply was not the cause of the issue. No further testing was completed in February 2024 (noting the notice to terminate was issued on 16 February 2024). I am not satisfied the tenant has proven the power outlet caused the damage to the charger. Given the recent testing of the premises’ power supply it is more likely to be an issue with the tablet charger. c. Leak under laundry sink: the tenant says she reported leaking under the laundry sink on 13 June 2023. One photo, taken approximately two months later was produced by the tenant. The landlord arranged for a plumber to attend but the tenant says the issue was not resolved and she wasn’t able to use hot water in the washing machine for the remainder of the tenancy. The landlord says the plumber found there was no issue with the hot water supply. I am not satisfied the tenant has proven the leak was from the hot water supply. The one photo provided by the tenant shows water on a webbed pipe, the type of pipe which is usually supplied with a washing machine. I am satisfied it is more likely the leak was from the tenant’s washing machine pipe. d. Balcony door: the tenant says within a month of moving in she found the lock on the balcony door on the upper floor off the dining area had disintegrated and did not lock. She says on 30 June 2024 a handyperson came to fix the lock, but only fixed the front door lock and not the balcony lock. The tenant alerted the landlord to this on 18 August 2024 and the handyperson attended again on 4 September 2024 and fixed the balcony door lock. I am satisfied the landlord arranged for maintenance to attend and remedy the issue shortly after it was reported by the tenant. The landlord had instructed the handyperson to fix both the balcony door and front door on 30 June 2024, and the landlord was not aware the balcony door had not been remedied until it was raised by the tenant on 18 August 2024. The balcony door lock was then remedied within a reasonable timeframe.
I find the landlord did not commit an unlawful act by failing to maintain the premises.
I dismiss the tenant’s claim for exemplary damages for failure to maintain. Has the landlord proved the tenant damaged the premises by contaminating it with methamphetamine?
In their cross-application, the landlord claimed the tenant had caused damage to the premises by methamphetamine contamination. The landlord did not conduct a pre-tenancy test.
Given there was no pre-tenancy testing, the landlord did not produce evidence to prove, to the required standard, that the levels of methamphetamine contamination detected during and/or after the tenancy were solely attributable to the tenant. 6
At the hearing, the landlord acknowledged the evidential deficiency and did not pursue the claim seeking compensation for decontamination of the premises, compensation for replacement of the carpet, and/or compensation for loss of rent during decontamination.
I dismiss those claims.

Has the landlord proved the tenant used the premises for an unlawful purpose?

It is unlawful to procure or possess, or consume, smoke, or otherwise use, methamphetamine. 7 [The landlord/s] claims the tenant used the premises unlawfully by using it, or others to use it, to smoke methamphetamine.
A tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) of the RTA. 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 of the RTA.
On 5 March 2024, the landlord arranged for further testing for methamphetamine on objects installed in the premises during the tenancy. The results found methamphetamine residue was detected on a black bike rack in the garage (5.78μg/100cm 2 ), and a curtain rail in the lounge (3.53μg/100cm 2 ). The tenant accepted both the bike rack and the curtain rail were installed by the tenant during the tenancy.
The tenant submitted the contamination could have been caused by cleaning those items using cloths used to wipe the methamphetamine contaminated walls. I do not accept that is likely because the test results showed the walls in the garage had lower levels of methamphetamine than the bike rack. That is 6 See Eren Limited v Martin and Kukuruzsnayak [2021] NZDC 15210; Brooking and Hodges v Imrie [2021] NZDC 16976. 7 Pursuant to s7(1) of the Misuse of Drugs Act 1975. inconsistent with the tenant’s theory that only the walls were exposed to methamphetamine, and not the bike rack. It was the same in the lounge: the curtain rail had higher levels of methamphetamine than that detected on the walls of that room.
I am satisfied the tenant used the premises – for privacy and/or shelter – while she, or those she permitted on the premises, consumed methamphetamine. I therefore find the tenant 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. See section 109(3) of the RTA.
I am satisfied it is just to award exemplary damages. The tenant’s intent was to use her home to smoke, or permit others to smoke, methamphetamine. The effect of the unlawful act was significant in that the landlord has incurred the cost of decontaminating the premises. I also note it is the public interest that those who contaminate rental properties through the use of methamphetamine be held responsible.
Noting all of the above factors, and that the maximum available is $1,800.00, I consider an award at the upper end is appropriate. I make an order that the tenant pay the landlord $1,500 in exemplary damages. Has the landlord proved the tenant failed to replace the broken window in the garage to a reasonable standard? Has the landlord proved the tenant is liable for the cost of repairing damage to interior walls?
For each of the above two claims, the 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 of the RTA.
Tenants are liable for the cost of repairing damage that is intentional. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) of the 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. 8
The tenant accepted she intentionally broke the window in the garage when she needed to gain entry after locking herself out. In December 2023, the tenant replaced the broken window with a polycarbonate thermoplastic windowpane.
The tenant also accepted she installed interior cameras, curtain rails, a TV bracket, an additional lock and picture hooks in the bedrooms, lounge, stairway and garage. The tenant accepted she screwed a black bike rack onto the wall of the garage.
I am satisfied the replacement window in the garage was not a like-for-like replacement. Replacing a glass window with a polycarbonate thermoplastic is not a like-for-like replacement. The tenant says they would have fixed the interior walls where fixings had caused damage, but they were not given enough time under the seven-day notice to terminate. I reject that. The tenant is required is to leave the premises undamaged at the end of the tenancy. The landlord is not required to offer the tenant further time after the tenancy has ended to remedy any issues.
The amounts ordered are proved. Should the tenant reimburse the landlord’s application fee?
As the landlord has substantially succeeded with the claim the tenant must reimburse the filing fee. Should the landlord’s identifying details be suppressed?
The landlord applied for suppression of their name and the tenancy address. As the application was substantially successful, the landlord is entitled to name suppression and I make the order accordingly.
The tenant did not apply for name suppression.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
The Bond Centre is to pay $2,355.00 of the bond ([Bond number suppressed]) to [The landlord/s] immediately. The Bond Centre is to pay $765.00 of the bond ([Bond number suppressed]) to Shania Hoang immediately, as per the table below:

Reasons

Introduction

In May 2023, the tenant and her children moved into the landlord’s townhouse. After the tenant had lived there for nine months, the landlord ended the tenancy shortly after a comprehensive test for methamphetamine revealed several rooms in the house had methamphetamine contamination at levels that posed a risk to people’s health. The tenancy was terminated on the basis the premises were uninhabitable due to methamphetamine contamination. The notice gave the tenant seven days to move out of the premises.
The tenant denies contaminating the premises with methamphetamine and filed a claim in the Tribunal alleging the manner in which the tenancy came to an end was not lawful. The tenant also says the landlord should compensate her for renting premises that were not adequately heated and were poorly maintained during the tenancy.
In a counterclaim, the landlord says the tenant is responsible for the methamphetamine contamination and should compensate the landlord for the cost of decontaminating the premises and replacing contaminated carpet. In addition, the landlord says the tenant should pay exemplary damages for using the premises to smoke (or allowing others to smoke) methamphetamine. The landlord also says the tenant failed to adequately fix a broken window in the garage and caused damage to interior walls. The issues for me to determine are: a. Has the tenant proved the landlord terminated the tenancy without grounds? b. Has the tenant proved the landlord breached the Healthy Homes

Standards in relation to heating?

After determining those substantive issues, I must also determine whether the landlord is entitled to reimbursement of the filing fee, and whether the landlord’s name should be suppressed. Burden and standard of proof
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.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fraction 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.

Has the tenant proved the landlord terminated the tenancy without grounds?

Shania Hoang claims on 16 February 2024 the landlord gave the tenant notice to terminate the tenancy knowing that they were not entitled to under the RTA to give the notice.
A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant knowing that they are not entitled, under the RTA, to give the notice. See section 60AA of the RTA. Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $6,500.00. See section 60AA and Schedule 1A of the RTA.
The tenant says on 16 February 2024 the landlord issued a notice to terminate the tenancy stating the end of the tenancy would be 7 days later, on 23 February 2024 on the basis the premises were uninhabitable. 1 The tenant’s complaint is: a. The notice to terminate was issued 17 weeks after the initial screening testing conducted on 17 November 2023 found methamphetamine present in the premises. The tenant says the comprehensive testing (carried out on 5 February 2024) should have been completed sooner. b. The tenant challenges the landlord’s determination that the premises was uninhabitable. The tenant says only the Council, or some other official, can deem a premises uninhabitable. 1 Section 59(1) and (2).
As to the first ground, the tenant says the landlord should have completed a comprehensive test for methamphetamine sooner as it placed her and her children at risk. The tenant says the first test conducted on 17 November 2023 found “extremely high” levels of methamphetamine but that she chose to wait for a more in-depth test to be completed. 2
On receiving the results of the first test conducted on 17 November 2023, the tenant could have issued her own notice to end the tenancy in 28 days. 3 The tenant chose not to. There is no requirement that a landlord conduct testing for methamphetamine. The tenant’s complaint that she and her family were exposed to potential methamphetamine contamination for an unnecessary period is without foundation, and does not render the notice that was issued on 16 February 2024 unlawful.
As to the second ground, I am satisfied the premises were correctly deemed uninhabitable by the landlord. In May 2018, the Chief Science Advisor, Professor Sir Peter Gluckman determined there is little evidence supporting health risks from exposure to residue from methamphetamine below 15μg/100cm 2 (the Gluckman level), 4 and therefore, it is generally accepted that levels above 15μg/100cm 2 do pose the risk of adverse health effects. 5
The premises is a three-storey, two-bedroom, one bathroom townhouse. On 5 February 2024, a comprehensive test for methamphetamine was conducted at the premises and found methamphetamine contamination levels of: a. 30.80μg/100cm 2 and 34.30μg/100cm 2 in the garage on the ground floor; b. 24.00μg/100cm 2 in the bathroom on the middle floor; and c. 22.30μg/100cm 2 in the open plan kitchen/dining/lounge on the upper floor.
Each of those rooms, on each of the three levels of the premises, are above the Gluckman level. Given those results, I am satisfied the high levels of methamphetamine found in the premises, on all three levels, including in the only bathroom and only kitchen/living/dining area, rendered the premises uninhabitable.
It follows that I find that on 16 February 2024 the landlord issued a lawful notice to terminate the tenancy. 2 The results of the 17 November 2023 testing were not produced by either party. It was not in dispute that that testing was a screening test which indicated methamphetamine was present but did not provide a detailed analysis of the levels of contamination in individual rooms. 3 The fixed term tenancy expired on 6 November 2023. The tenant could therefore terminate the periodic tenancy by giving 28 days’ notice, pursuant to s51(2) of the RTA as it was at that time. 4 Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards, 29 May 2018. 5 See Full Circle Real Estate Limited v Danielle Piper [2019] NZDC 4947; Eren Limited v Martin and Kukuruzsnak [2021] NZDC 15210; Acme Realty Limited v Hogg, Polotu and Coughlin [2021] NZDC 3231.
I dismiss the tenant’s claim for exemplary damages for unlawful termination. Has the tenant proved the landlord breached the Healthy Homes Standards in relation to heating?
At the hearing, the tenant accepted an exemption applied to the premises and the tenant did not pursue the claim that the landlord had breached the Healthy Homes Standards (HHS) in relating to heating.
I dismiss the tenant’s claim for exemplary damages in relation to HHS.

Has the tenant proved the landlord failed to maintain the premises?

Shania Hoang claims the landlord breached their obligations under section 45 of the RTA. Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.
Breaching that obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A of the RTA.
The tenant says the landlord failed to maintain the following: a. Heated towel rail in the bathroom: the tenant says the heated towel rail wasn’t working properly. b. Power outlet in the bedroom: the tenant says a charger plugged into the outlet melted due to a fault in the power outlet. c. Leak under the laundry sink: the tenant says the pipe bringing hot water to her washing machine leaked. d. Balcony door: the tenant says the balcony door was not fixed for several months.
I am not satisfied the tenant has proved it more likely than not that the landlord failed to maintain the above items in a reasonable time after being notified by the tenant.
The reason for my finding in respect of each claim is set out below: a. Heated towel rail: the tenant says in the first three months of the tenancy she reported the towel rail was not working. The tenant says an electrician attended in late June 2023, but that no work was done. The landlord produced records that an electrician attended on 25 October 2023 and reported the heated towel rail was working and in good condition. The electrician provided a quote to replace the heated towel rail with a new one, but reported to the landlord it would be for cosmetic reasons only as the current rail was working. I am not satisfied the tenant has proven the heated towel rail was not working in condition. b. Power outlet in bedroom: the tenant says on 9 February 2024 her son’s tablet was plugged into the power outlet in the bedroom. The tenant says when she came home she found the tablet’s power charger had melted. A photograph of the damaged tablet charger was produced as evidence the issue was reported to the landlord that day. The landlord says the tenant had previously reported issues with sparks from a charger plugged into a different outlet in the lounge, and produced a record to show an electrician attended on 10 September 2023 who tested the lounge outlet and found the power supply was not the cause of the issue. No further testing was completed in February 2024 (noting the notice to terminate was issued on 16 February 2024). I am not satisfied the tenant has proven the power outlet caused the damage to the charger. Given the recent testing of the premises’ power supply it is more likely to be an issue with the tablet charger. c. Leak under laundry sink: the tenant says she reported leaking under the laundry sink on 13 June 2023. One photo, taken approximately two months later was produced by the tenant. The landlord arranged for a plumber to attend but the tenant says the issue was not resolved and she wasn’t able to use hot water in the washing machine for the remainder of the tenancy. The landlord says the plumber found there was no issue with the hot water supply. I am not satisfied the tenant has proven the leak was from the hot water supply. The one photo provided by the tenant shows water on a webbed pipe, the type of pipe which is usually supplied with a washing machine. I am satisfied it is more likely the leak was from the tenant’s washing machine pipe. d. Balcony door: the tenant says within a month of moving in she found the lock on the balcony door on the upper floor off the dining area had disintegrated and did not lock. She says on 30 June 2024 a handyperson came to fix the lock, but only fixed the front door lock and not the balcony lock. The tenant alerted the landlord to this on 18 August 2024 and the handyperson attended again on 4 September 2024 and fixed the balcony door lock. I am satisfied the landlord arranged for maintenance to attend and remedy the issue shortly after it was reported by the tenant. The landlord had instructed the handyperson to fix both the balcony door and front door on 30 June 2024, and the landlord was not aware the balcony door had not been remedied until it was raised by the tenant on 18 August 2024. The balcony door lock was then remedied within a reasonable timeframe.
I find the landlord did not commit an unlawful act by failing to maintain the premises.
I dismiss the tenant’s claim for exemplary damages for failure to maintain. Has the landlord proved the tenant damaged the premises by contaminating it with methamphetamine?
In their cross-application, the landlord claimed the tenant had caused damage to the premises by methamphetamine contamination. The landlord did not conduct a pre-tenancy test.
Given there was no pre-tenancy testing, the landlord did not produce evidence to prove, to the required standard, that the levels of methamphetamine contamination detected during and/or after the tenancy were solely attributable to the tenant. 6
At the hearing, the landlord acknowledged the evidential deficiency and did not pursue the claim seeking compensation for decontamination of the premises, compensation for replacement of the carpet, and/or compensation for loss of rent during decontamination.
I dismiss those claims.

Has the landlord proved the tenant used the premises for an unlawful purpose?

It is unlawful to procure or possess, or consume, smoke, or otherwise use, methamphetamine. 7 [The landlord/s] claims the tenant used the premises unlawfully by using it, or others to use it, to smoke methamphetamine.
A tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) of the RTA. 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 of the RTA.
On 5 March 2024, the landlord arranged for further testing for methamphetamine on objects installed in the premises during the tenancy. The results found methamphetamine residue was detected on a black bike rack in the garage (5.78μg/100cm 2 ), and a curtain rail in the lounge (3.53μg/100cm 2 ). The tenant accepted both the bike rack and the curtain rail were installed by the tenant during the tenancy.
The tenant submitted the contamination could have been caused by cleaning those items using cloths used to wipe the methamphetamine contaminated walls. I do not accept that is likely because the test results showed the walls in the garage had lower levels of methamphetamine than the bike rack. That is 6 See Eren Limited v Martin and Kukuruzsnayak [2021] NZDC 15210; Brooking and Hodges v Imrie [2021] NZDC 16976. 7 Pursuant to s7(1) of the Misuse of Drugs Act 1975. inconsistent with the tenant’s theory that only the walls were exposed to methamphetamine, and not the bike rack. It was the same in the lounge: the curtain rail had higher levels of methamphetamine than that detected on the walls of that room.
I am satisfied the tenant used the premises – for privacy and/or shelter – while she, or those she permitted on the premises, consumed methamphetamine. I therefore find the tenant 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. See section 109(3) of the RTA.
I am satisfied it is just to award exemplary damages. The tenant’s intent was to use her home to smoke, or permit others to smoke, methamphetamine. The effect of the unlawful act was significant in that the landlord has incurred the cost of decontaminating the premises. I also note it is the public interest that those who contaminate rental properties through the use of methamphetamine be held responsible.
Noting all of the above factors, and that the maximum available is $1,800.00, I consider an award at the upper end is appropriate. I make an order that the tenant pay the landlord $1,500 in exemplary damages. Has the landlord proved the tenant failed to replace the broken window in the garage to a reasonable standard? Has the landlord proved the tenant is liable for the cost of repairing damage to interior walls?
For each of the above two claims, the 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 of the RTA.
Tenants are liable for the cost of repairing damage that is intentional. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) of the 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. 8
The tenant accepted she intentionally broke the window in the garage when she needed to gain entry after locking herself out. In December 2023, the tenant replaced the broken window with a polycarbonate thermoplastic windowpane.
The tenant also accepted she installed interior cameras, curtain rails, a TV bracket, an additional lock and picture hooks in the bedrooms, lounge, stairway and garage. The tenant accepted she screwed a black bike rack onto the wall of the garage.
I am satisfied the replacement window in the garage was not a like-for-like replacement. Replacing a glass window with a polycarbonate thermoplastic is not a like-for-like replacement. The tenant says they would have fixed the interior walls where fixings had caused damage, but they were not given enough time under the seven-day notice to terminate. I reject that. The tenant is required is to leave the premises undamaged at the end of the tenancy. The landlord is not required to offer the tenant further time after the tenancy has ended to remedy any issues.
The amounts ordered are proved. Should the tenant reimburse the landlord’s application fee?
As the landlord has substantially succeeded with the claim the tenant must reimburse the filing fee. Should the landlord’s identifying details be suppressed?
The landlord applied for suppression of their name and the tenancy address. As the application was substantially successful, the landlord is entitled to name suppression and I make the order accordingly.
The tenant did not apply for name suppression.

Tenancy Tribunal case 4953433 — Exemplary damages

Tenancy Tribunal case 4953433 — Exemplary damages

Order

Reasons

Standards in relation to heating?

Has the tenant proved the landlord terminated the tenancy without grounds?

Has the tenant proved the landlord failed to maintain the premises?

Has the landlord proved the tenant used the premises for an unlawful purpose?

Order

Reasons

Standards in relation to heating?

Has the tenant proved the landlord terminated the tenancy without grounds?

Has the tenant proved the landlord failed to maintain the premises?

Has the landlord proved the tenant used the premises for an unlawful purpose?