What was the outcome of Tenancy Tribunal case 4560029?

The tribunal order states: Nina Munro must pay Barfoot & Thompson as agent for Tony Gibson & Ling

How much money was awarded in case 4560029?

Bailiffs' Charges: $200.00 awarded to landlord; Property Damage: $900.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Lost Rent: $6,190.57 awarded to landlord; Previous Order Application 4473588 D…: $91.55 awarded to landlord; Property Damage: $462.00 awarded to landlord; Property Damage: $2,500.00 awarded to landlord; Rent Arrears: $2,869.29 awarded to landlord; Rubbish Removal: $644.00 awarded to landlord; Water Rates: $224.17 awarded to landlord

What type of tenancy dispute was case 4560029?

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

Where can I read the official tribunal order for case 4560029?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9682119-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4560029?

The tribunal order states: Nina Munro must pay Barfoot & Thompson as agent for Tony Gibson & Ling

How much money was awarded in case 4560029?

Bailiffs' Charges: $200.00 awarded to landlord; Property Damage: $900.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Lost Rent: $6,190.57 awarded to landlord; Previous Order Application 4473588 D…: $91.55 awarded to landlord; Property Damage: $462.00 awarded to landlord; Property Damage: $2,500.00 awarded to landlord; Rent Arrears: $2,869.29 awarded to landlord; Rubbish Removal: $644.00 awarded to landlord; Water Rates: $224.17 awarded to landlord

What type of tenancy dispute was case 4560029?

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

Where can I read the official tribunal order for case 4560029?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9682119-Tenancy_Tribunal_Order.pdf.

5 Felgrove Street, Glendene, Auckland 0602 Tenancy Tribunal Case 4560029 — Lost Rent

Tenantcheck Insights

Loading insights…

Pulling tribunal records

Loading insights…

Pulling tribunal records

Order

Nina Munro must pay Barfoot & Thompson as agent for Tony Gibson & Ling Ning $14,102.02 immediately, calculated as shown in table below. DescriptionLandlord Rent arrears to 6 March 2023$2,869.29 Previous order application 4473588 dated 08/02/2023$91.55 Water rates$224.17 Rubbish removal$644.00 Lock/key replacement$462.00 Bailiffs' charges$200.00 Insurance excess – methamphetamine$2,500.00 Lost rent 16/03 - 30/06/23 due to contamination$6,190.57 Exemplary damages – unlawful use of premises $900.00 Filing fee reimbursement$20.44 Total award$14,102.02

Reasons

Claims and awards in Tenancy Tribunal application 4560029. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 6 March 2023	$2,869.29	Rent arrears to 6 March 2023
Previous order application 4473588 dated 08/02/2023	$91.55	Previous order application 4473588 dated 08/02/2023
Water rates	$224.17	Water rates
Rubbish removal	$644.00	Rubbish removal
Lock/key replacement	$462.00	Lock/key replacement
Bailiffs' charges	$200.00	Bailiffs' charges
Insurance excess – methamphetamine	$2,500.00	Insurance excess – methamphetamine
Lost rent 16/03 - 30/06/23 due to contamination	$6,190.57	Lost rent 16/03 - 30/06/23 due to contamination
Exemplary damages – unlawful use of premises	$900.00	Exemplary damages – unlawful use of premises
Filing fee reimbursement	$20.44	Filing fee reimbursement

Danielle Williams attended the hearing for the landlords’ agent.

The tenant did not attend. The hearing proceeded in her absence.

The landlords have applied for rent and water arrears, compensation for methamphetamine contamination and other related costs, exemplary damages for the tenant using and/or permitting the premises to be used for an unlawful purpose, and reimbursement of the filing fee following the end of the tenancy. How much is owed for rent, water rates, the bailiffs’ fees, and lost rent?

The tenancy ended on 8 February 2023 due to The Tribunal’s termination order of that date. 1

However, the tenant did not comply with the termination order and the landlord had to instruct the bailiffs to evict the tenant. The eviction was carried out on 6 March 2023 and the bailiffs’ fee was $200.00.

Ms Williams provided rent records and water rates invoices which prove the amounts owing for rent and water to the eviction date. 2

Is the tenant liable for methamphetamine contamination losses?

The landlord applies for compensation for the cost methamphetamine testing and decontamination. Legal principles

To succeed in its claim, the landlord must prove: a. that the premises were contaminated with methamphetamine during the tenancy, and b. that the tenant caused or permitted the contamination, or that it was caused by someone at the premises with the tenant’s consent. 1 Barfoot & Thompson Limited Acting Agent For Gibson, Tony v Nina Munro [2023] NZTT 4473588. 2 See Residential Tenancies Act 1986 (RTA), s 60(1) “Where a tenant remains in occupation of the premises after the tenancy has terminated or has been terminated, all the obligations of the tenant shall continue in force as if the tenancy were still subsisting until such time as the tenant ceases to occupy the premises.”

Section 138C Residential Tenancies Act 1986 provides for regulations to be made prescribing the maximum acceptable level for contaminants, but no regulations have been made in relation to methamphetamine yet.

There are currently two sources of guidance on the issue of a safe level of methamphetamine contamination in residential premises. In June 2017 Standards New Zealand published NZS 8510:2017. The standard recommended a maximum contamination level of 1.5μg/100cm2 for high use areas where contamination has resulted from both consumption and manufacture. It recommended a higher level of 3.8μg/100cm2 for limited use areas.

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 report noted that there is a lack of scientific evidence to prove that low-level third-hand methamphetamine exposure poses a health risk to humans. It stated that guidelines should be proportionate to risk and that exposure to a level below 15μg/100cm 2 was unlikely to have an adverse effect. It recommended retaining the level of 1.5μg/100cm 2 where contamination resulted from manufacture due to the risk posed by harmful chemicals used in the process.

The District Court has held that remediation should be carried out in accordance with the prevailing guidelines at the time. 3

The Tribunal has generally applied the Gluckman recommendation. This approach was approved by the District Court in Full Circle Real Estate Limited v Piper [2019] NZDC 4947, where the Court stated (at para [36]): 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.

The District Court took a similar approach in Acme Realty Limited v Hogg and others [2021] NZDC 3231, where the Court referred to the Full Circle case and held that, because NZS 8510:2017 has not been adopted into law, the Tribunal was not bound to apply the 1.5μg standard. 3 Diamond Real Estate Limited v Allan [2017] NZDC 833.

More recently, in Barfoot and Thompson Limited v Kāhui Tū Kaha Limited [2021] NZTT Auckland 4276319, both parties presented scientific evidence at a hearing before the Tribunal. The Tribunal concluded that there was no new scientific research to change the conclusions reached in the Gluckman Report. Discussion

After the tenancy ended, the landlord carried out methamphetamine testing, which returned results of between 1.5μg and 79μg. Individualised samples included results of: hallway, 42μg; bedroom 2, 16.7μg; the lounge, 26μg; a door frame, 23μg; and bedroom 5, 79μ.g.

These levels are above the Gluckman Report’s level of what could confidently be considered to be safe for human habitation. Therefore, the landlord was obliged to decontaminate the premises before they could be rented out.

I have heard no evidence to suggest the methamphetamine contamination could have occurred prior to the tenancy beginning on 10 August 2018.

I find it more probable than not that the that the premises was contaminated with methamphetamine during the tenancy.

The areas that the individualised tests show were contaminated above the Gluckman level include the bedroom that the tenant used.

I find it more likely than not that the tenant caused or permitted the contamination, or that it was caused by someone at the premises with the tenant’s consent. Remedies

Fortunately, the landlords were insured up to a maximum of $30,000.00 for the cost of methamphetamine decontamination. The actual decontamination costs were actually about $5,000.00 in excess of the maximum. However, I do not find the tenant liable for that amount because the costs include remediation of some rooms that did not test beyond the Gluckman level. If only the rooms that exceeded that level were decontaminated, the cost of decontamination would not have exceeded $30,000.00.

The landlords had to bear an excess of $2,500.00. The tenant must reimburse the landlords for that.

The landlords also seek compensation for lost rent due to methamphetamine decontamination.

To assess that it is necessary to consider the timeline for decontamination and decide whether it was reasonable.

Initial methamphetamine testing was conducted on 7 March 2023, the day following the tenant being evicted. On 14 March 2023, the composite test results indicated a high level of methamphetamine contamination so that the premises were likely to be uninhabitable. On 23 March 2023, further detailed sampling was conducted. On 27 March 2023, the results confirmed that significant decontamination of the premises was required. On 30 March 2023, the landlords applied to their insurance company for cover. On 10 May 2023, post-decontamination work testing was conducted, which indicated further decontamination work was required. The premises were not made tenantable again until 30 June 2023.

I consider the timeframe for decontamination was reasonable. Therefore, the tenant is liable to the landlord for the loss of rent up until 30 June 2023. The landlords’ insurance company covered eight weeks of the loss of rental income up to that date. The tenant is liable for the difference between the lost rent and the eight weeks the insurance company covered, which amounts to $6,190.57.

The landlord seeks exemplary damages for the tenant using the premises unlawfully, by smoking or permitting others to use methamphetamine at the premises.

A tenant must not use the premises or permit the premises to be used for an unlawful purpose. 4

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. 5

It is unlawful to use methamphetamine or to permit premises to be used for that purpose. 6

I find it proven on the balance of probabilities that the tenant used methamphetamine and permitting others to use methamphetamine at the premises. The methamphetamine testing indicates someone used methamphetamine in the tenant’s bedroom. That person is most likely the tenant because it was her room. Being a user of methamphetamine, it is likely the tenant also was aware of and permitted others to use methamphetamine in the premises. I find they have intentionally committed an unlawful act. 4 RTA, s 40(2)(b). 5 RTA, s 40(3A)(c) and Schedule 1A. 6 Misuse of Drugs Act 1975, ss 7, and 12.

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. 7

Exemplary damages are designed to punish and to deter. 8 They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 (CA) 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.

The tenant’s intent was probably directed to recreational enjoyment and there was no intent to damage the premises. The consequences of the unlawful act include causing the landlords to suffer severe financial cost. It is in the landlord’s interests to order exemplary damages to vindicate the harm they have suffered. It is in the public interest to award exemplary damages to deter this tenant and others who might commit similar unlawful acts.

It is just to award to exemplary damages and the Tribunal makes an order for $900.00 in exemplary damages, which is 50 percent of the maximum.

Did the tenant remove all rubbish and return the keys?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, and return all keys. 9

The tenant did not leave the premises reasonably clean and tidy, did not remove all rubbish, and did not return the keys.

The amounts ordered for rubbish removal and to change the locks and key are proved. Previous order

In its order of 8 February 2023, 10 the Tribunal order the tenant to pay the landlords $91.55. The tenant has not paid that amount. It is included in this order to simplify any enforcement proceedings. 7 RTA, s 109(3). 8 See for example, Gao & Jeyasingham v Landlord [2022] NZTT 4329775, 4328263 para 61 ffg. 9 RTA, s 40(1)(e). 10 See n 1. Filing fee

The landlords having largely succeeded in their claim, the Tribunal orders the tenant to reimburse them for the cost of the filing fee.

Order

Reasons

Claims and awards in Tenancy Tribunal application 4560029. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 6 March 2023	$2,869.29	Rent arrears to 6 March 2023
Previous order application 4473588 dated 08/02/2023	$91.55	Previous order application 4473588 dated 08/02/2023
Water rates	$224.17	Water rates
Rubbish removal	$644.00	Rubbish removal
Lock/key replacement	$462.00	Lock/key replacement
Bailiffs' charges	$200.00	Bailiffs' charges
Insurance excess – methamphetamine	$2,500.00	Insurance excess – methamphetamine
Lost rent 16/03 - 30/06/23 due to contamination	$6,190.57	Lost rent 16/03 - 30/06/23 due to contamination
Exemplary damages – unlawful use of premises	$900.00	Exemplary damages – unlawful use of premises
Filing fee reimbursement	$20.44	Filing fee reimbursement