Published tribunal order
Tenancy Tribunal case 5064330 — Exemplary damages at 28B Harris Street, Huntly, Huntly 3700
Decided 16 Dec 2024 · Published 16 Dec 2024 · Application 5064330
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the [Landlord] name and identifying details.
- The tenancy of Cory Waitemata Wilson and Victoria Bette Roberts is terminated and possession is granted to [Landlord] immediately.
- Cory Waitemata Wilson and Victoria Bette Roberts to pay [Landlord] $2,193.53 immediately, calculated as follows: DescriptionLandlord Drug testing $666.55 Exemplary damages (s 40(2)(b))$1,500.00 Filing fee27.00 Total award$2,193.55
Reasons
- The Landlord attended the hearing. The Tenants did not answer when called.
- The Landlord has applied for termination of the tenancy for breach of the Tenant’s obligations.
Should the tenancy be terminated?
- The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate: s 56(1) Residential Tenancies Act 1986.
- Where the breach is not capable of remedy the landlord is not required to serve a 14-day notice on the tenant.
- The Tenant has breached their obligations by using or allowing methamphetamine to be used at the premises. The Landlord points to pre- tenancy methamphetamine testing at the premises, which returned a low positive below 2μg/100cm2 surface area, coupled with testing on 31 October 2024, which returned the following results: 1 Kitchen laundry 0.82μg/100cm2 2 Bathroom 6.70μg/100cm2 3 Bedroom 1 10.7μg/100cm2 4 Lounge 10.3μg/100cm2 5 Bedroom 2 12.4μg/100cm2
- It would be inequitable to refuse to terminate the tenancy because the premises have clearly been contaminated by methamphetamine during the Tenants’ tenancy and the methamphetamine use giving rise to the contamination cannot be permitted to continue.
- I award $666.55 to the Landlord for their costs in conducting testing at the premises to determine methamphetamine contamination levels. Have the Tenants’ used the premises for an unlawful purpose?
- A tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. See section 40(3A)(c) and Schedule 1A Residential Tenancies Act 1986.
- It is unlawful to use methamphetamine as it is a Class A drug under the Misuse of Drugs Act.
- The Landlord has not established that the Tenants used methamphetamine at the premises. If the Tenants have not used methamphetamine inside the premises, somebody they have permitted to access the premises has. The Tenants chose not to attend the hearing, and from their absence I infer guilt. I find the Tenants have 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) Residential Tenancies Act 1986.
- I have limited information as to intent of the Tenants’ in committing the unlawful act as they have chosen not to attend the hearing. I have no information from the Landlord (Owner) as to the detriment they have suffered as a result of the Tenants’ illegal activity. I note the home has been contaminated by methamphetamine prior to the Tenants’ tenancy, but at much lower levels. I appreciate there is a certain stigma which attaches to premises which have been tainted by methamphetamine use. I would have hoped the Landlord would have been selective about who rented the premises after receiving the pre-tenancy test results.
- Having regard to the public interest in having rental homes free of methamphetamine contamination I award $1,500.00 to the Landlord as I consider the Tenants’ ought to have done more to protect the Landlord’s interests, and I find, on balance, they knew of methamphetamine use at the premises and have failed to do the honourable thing and confront their failings.
- Because [Landlord] As Agent For H & W Walker Family Trust has wholly succeeded with the claim I must reimburse the filing fee of $27.00.