What was Tenancy Tribunal case 5111768 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 5111768?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5111768?

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

Where can I read the official tribunal order for case 5111768?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11826650-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5111768 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 5111768?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5111768?

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

Where can I read the official tribunal order for case 5111768?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11826650-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5111768 — Property damage

Tenantcheck Insights

Reasons

The landlord attended the hearing.

The tenant did not attend the hearing. I have previously directed service of the proceedings on the tenant by email. The tenant was emailed notice of the hearing. The hearing proceeded in her absence.

The landlord has claims in respect of methamphetamine contamination and seeks compensation from the tenant of $319.00 for screen testing, $799.00 for discrete testing, $2500 being the insurance excess in relation to a claim for decontamination and $255.18 for the heat pump filter to be serviced. The landlord also seeks exemplary damages.

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.” Exemplary damages

Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell 1 the Court of Appeal 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. Before the Tribunal may award exemplary damages, the Tribunal must take into account the following factors: a.the intent of the person in committing the unlawful act, 1 Auckland City Council v Blundell [1986] NZLR 732(Cooke P) b.the effect of the unlawful act, c.the interests of the landlord or the tenant against whom the unlawful act was committed, d.the public interest, e.whether it is just to make the award. 2

The maximum level of exemplary damages that can be ordered are set out in Schedule 1A of the RTA. The Tribunal’s usual approach to exemplary damages is to award one third of the maximum unless there are aggravating or mitigating factors in play. 3 Methamphetamine

Methamphetamine contamination, at levels that require de-contamination, constitutes damage to the premises.

Section 138C of the RTA provides for regulations to be made prescribing the maximum acceptable level for contaminants. There is currently no level specified for de-contamination for methamphetamine.

In 2017 the Standards New Zealand released Standard NZS 8510:2017 “Testing and decontamination of methamphetamine-contaminated properties” (the Standard). At that time, the Standard set the definitive levels at which properties which had methamphetamine contamination, required remediation. The 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 the Standard, was to remediate premises contaminated with methamphetamine, to a level of less than 1.5 μg/100 cm 2 .

Subsequently, the Prime Minister’s Chief Science Advisor, Professor Sir Peter Gluckman concluded that any levels below 15 μg/100 cm 2 were unlikely to present adverse effects. 4 The Gluckman report recommended decontamination to the level of 1.5μg/100cm2 only where contamination resulted from manufacture due to the risk posed by harmful chemicals used in the manufacturing process.

There are therefore the two sources of guidance on the issue of a safe level of methamphetamine contamination in residential premises - the Standard level 2 Section 109 of the RTA. 3 Wellington Property Management Ltd v Hardie [2022] NZTT 4399281 4374781. 4 Prime Minister’s Chief Science Advisor Professor Sir Peter Gluckman’s report, Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards, 29 May 2018. of 1.5 μg/100 cm 2 and the Gluckman report that there is no evidence of risk below 15 μg/100 cm 2 .

The Tenancy Tribunal has adopted the recommendations of the Gluckman report, which concluded that de-contamination is required if contamination is present at levels of 15 μg/100 cm 2 or above.

This approach has been approved by the District Court and continues to be applied in Tenancy Tribunal decisions. 5 Pre-tenancy baseline testing

The more serious the claims made the greater the evidential burden on the applicant will be. 6 Alleging illegal drug use is a serious claim.

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 in the premises 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 methamphetamine contamination is likely to have occurred during the tenancy. This would need to be by way of pre- tenancy methamphetamine testing being undertaken.

In the decision of the Tribunal New Plymouth Registry [2022] NZTT 4340427 30 June 2022, the learned Adjudicator Kemp cited several authorities in her decision on this issue - from paragraphs 38 to 41.

In Anthony James Brooking v Colin Imrie [2021] NZDC 16976, Judge Cameron considered a case where the Tenancy Tribunal accepted that contamination was caused by the tenants, in circumstances where there was no pre-tenancy testing performed. The Tribunal had accepted evidence from a witness, who worked in a childcare centre across the road from the Tenancy, who described the windows covered with a film, security cameras having been installed, and strong chemical smells arising from the premises. The witness also described gang members and other “undesirable” people attending the premises regularly, with cars regularly driving in an (sic) out of the premises often, as well as regular visits from the police. On 5 Full Circle Real Estate Ltd v Piper [2019] NZDC 4947, 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 6 Z v Dental Complaints Assessment Committee [2008] NZSC 55. appeal the District Court did not accept that evidence was sufficient to prove that methamphetamine had been used or manufactured on the premises during that tenancy, and concluded that the difficulty with the landlords claim is that there was no methamphetamine test conducted at the beginning of the tenancy, and no actual proof of what occurred during the tenancy. The District Court allowed the appeal, overturning the Tribunal’s decision. In short the Court considered that there was no evidence to support that the tenants in that case caused the contamination.

In the earlier case of Eren Limited v Louise Martin [2021] NZDC 15210, Judge de Ridder also considered a dispute over who caused the contamination. In that case, the Tribunal had declined the claim for the contamination remediation costs, on various grounds, including that the landlord had not established that the tenant contaminated the premises in the first instance. The appeal to the District Court was by the landlord. In that case, the landlord reports finding evidence of drug use in rubbish left by the tenants, and also that the neighbours had reported the tenants using drugs at the premises. The District Court confirmed that was circumstantial evidence that the Tribunal could consider. However, the Court found that the circumstantial evidence was not sufficient to get over the problem of no pretenancy methamphetamine testing: However, the significant problem for this claim is that there is no evidence of any methamphetamine testing carried out at the start of this tenancy. If there had been such testing and it revealed no methamphetamine then clearly the methamphetamine residue that was found at the end of this tenancy could only have occurred during the tenancy and could only have occurred by either the tenants using methamphetamine or permitting others to use methamphetamine inside the house. The lack of methamphetamine testing at the start of the tenancy significantly weakens the circumstantial case against the tenants to the point where it is not possible to conclude on the balance of probabilities that it was the tenants who were responsible for the methamphetamine residue located at the premises at the end of their tenancy.

In Yan v Weggery TT 4303380, 12 January 2022 the Tribunal considered a claim for methamphetamine damage where the premises concerned were brand-new at the start of the tenancy. It was accepted that of itself did not prove that there could not have been methamphetamine contamination before the start of the tenancy. The Tribunal noted that methamphetamine use does occur from tradespeople: just like it does in almost any element of society. The fact that the property was new at the start of the tenancy was insufficient to prove that the contamination occurred during the tenancy.

In Lodge City Rentals Limited v Hamilton TT4242075 6 July 2020, the Tribunal considered a claim for methamphetamine damage. One of the ways in which the landlord sought to prove methamphetamine contamination during the tenancy concerned an oven that had been installed during the course of the tenancy. A methamphetamine sample was taken from the oven. Analysis of the sample returned a positive result for the presence of methamphetamine with a reading of 0.41 μg/100cm². The Tribunal had the benefit of an expert report. The author considered that the area from which the sample was taken was one not typically handled and that hand to hand (object) contamination would be unlikely. The author stated that in their opinion, on the balance of probabilities, the oven was not contaminated when it was delivered, and the contamination occurred during the tenancy. The Tribunal disagreed finding that the area was one that could have been touched daily. The Tribunal was also unable to rule out the possibility that the contamination may have been left by those delivering or installing the oven at the property.

A common theme can be discerned from the authorities cited by Adjudicator Kemp: without a pre-tenancy test for the presence of methamphetamine, it will be difficult for a landlord to discharge the burden of proof on the balance of probabilities that the contamination of methamphetamine occurred during the tenancy.

ANALYSIS

The tenancy commenced on 31 May 2024.

The landlord did not undertake pre tenancy testing to show there was no methamphetamine contamination at the start of the tenancy.

The tenancy ended on 12 December 2024.

A screening test was provided from samples which I understand were taken on 16 December 2024. The 5-sample composite test had a reading of 6.41 μg/100 cm 2 . The sample had a theoretical maximum of 32.1 μg/100 cm 2.

A detailed assessment was undertaken from samples taken on 16 December 2024 which provided the following results: Room Sampling Location in Room Sample CodeResult Bathroom 1Wall below extractor BTM1A-Bathroom 19.77μg Bathroom 2Shelf above tubBTM2A-Bathroom 21.39μg Open Plan Kitchen/Dining/Lounge 1 Upper east wall adjacent to cabinetry KDL1A-Open Plan Kitchen/Dining/Lounge 1

58μg Open Plan Kitchen/Dining/Lounge 2 Right side of fridge KDL2A-Open Plan Kitchen/Dining/Lounge 2

55μg Open Plan Kitchen/Dining/Lounge 3 Ceiling left of heat pump KDL3A-Open Plan Kitchen/Dining/Lounge 3

10μg

The landlord has established there was methamphetamine contamination at the end of the tenancy.

However, as there is no pre-tenancy test in this case the landlord faces an obvious difficulty in proving the claim of methamphetamine contamination during the tenancy. It is possible to prove the claim by other means, but compelling evidence is needed.

The landlord says two areas where samples were taken from, being bathroom 2 (shelf above tub) and fridge, were new for this tenancy and therefore provide a baseline to show methamphetamine contamination occurred during the tenancy.

The invoice provided in relation to the purchase of the fridge is dated 30 May 2024, a day before the tenancy commenced.

The receipt for the floating shelves is dated 25 May 2025, before the tenancy commenced. I consider that the Tribunal cannot rule out other possible means of contamination as identified in the case law above.

Even if the Tribunal were to accept that these areas were contaminated during the tenancy, the test results for these areas were not above the NZ standards or the Gluckman standard and therefore do not support the claim that the tenant should be liable for testing or decontamination.

In addition, and crucially, there is no evidence, by way of pre tenancy testing, to confirm that the areas where contamination is above the Gluckman standard was not contaminated at the start of the tenancy.

I consider the landlord has provided insufficient evidence in support of the claim.

In the circumstances the lack of pre-tenancy testing means the landlord has not established that there was no methamphetamine contamination at the start of the tenancy.

Accordingly, the landlord has not discharged the burden of proof on the balance of probabilities that the tenant used the premises or permitted the premises to be used for the consumption of methamphetamine. The landlord’s claim for compensation and exemplary damages is dismissed.

On 14 March 2025 I made an order for name suppression for the landlord. This order continues to apply and the landlord’s name and identifying details are suppressed. The tenant’s name is also suppressed, given the landlord has been unsuccessful in this claim.

Reasons

The landlord attended the hearing.

RELEVANT LEGAL CONSIDERATIONS

Methamphetamine contamination, at levels that require de-contamination, constitutes damage to the premises.

Section 138C of the RTA provides for regulations to be made prescribing the maximum acceptable level for contaminants. There is currently no level specified for de-contamination for methamphetamine.

The Tenancy Tribunal has adopted the recommendations of the Gluckman report, which concluded that de-contamination is required if contamination is present at levels of 15 μg/100 cm 2 or above.

This approach has been approved by the District Court and continues to be applied in Tenancy Tribunal decisions. 5 Pre-tenancy baseline testing

The more serious the claims made the greater the evidential burden on the applicant will be. 6 Alleging illegal drug use is a serious claim.

The landlord must establish that methamphetamine contamination is likely to have occurred during the tenancy. This would need to be by way of pre- tenancy methamphetamine testing being undertaken.

ANALYSIS

The tenancy commenced on 31 May 2024.

The landlord did not undertake pre tenancy testing to show there was no methamphetamine contamination at the start of the tenancy.

The tenancy ended on 12 December 2024.

58μg Open Plan Kitchen/Dining/Lounge 2 Right side of fridge KDL2A-Open Plan Kitchen/Dining/Lounge 2

55μg Open Plan Kitchen/Dining/Lounge 3 Ceiling left of heat pump KDL3A-Open Plan Kitchen/Dining/Lounge 3

10μg

The landlord has established there was methamphetamine contamination at the end of the tenancy.

The invoice provided in relation to the purchase of the fridge is dated 30 May 2024, a day before the tenancy commenced.

I consider the landlord has provided insufficient evidence in support of the claim.

In the circumstances the lack of pre-tenancy testing means the landlord has not established that there was no methamphetamine contamination at the start of the tenancy.

Tenancy Tribunal case 5111768 — Property damage

At a glance

Tenancy Tribunal case 5111768 — Property damage

At a glance

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions