What was the outcome of Tenancy Tribunal case 4759258?

The tribunal order states: Harriet Jacobson and Simon Mccaulay must pay Barfoot & Thompson Limited

How much money was awarded in case 4759258?

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 4759258?

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

Where can I read the official tribunal order for case 4759258?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11281655-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4759258?

The tribunal order states: Harriet Jacobson and Simon Mccaulay must pay Barfoot & Thompson Limited

How much money was awarded in case 4759258?

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 4759258?

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

Where can I read the official tribunal order for case 4759258?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11281655-Tribunal_Order.pdf.

473 Don Buck Road, Massey, Auckland 0614 Tenancy Tribunal Case 4759258 — Cleanliness

Order

Harriet Jacobson and Simon Mccaulay must pay Barfoot & Thompson Limited as agent for Maria Thomas & Thomas Phillip $29,036.17 immediately, calculated as shown in table below.
The landlord is to retain the bond of $3,000. DescriptionLandlord Rent arrears to 22 November 2023 Water arrears $2,357.14 $132.99 Rent loss from 23 November 2023 to 27 January 2024$7,071.43 Meth testing$5,128.42 Meth cleaning$9,545.00 Replacing blinds, insulation$3,000.00 Replacing carpets$2,000.00 General repairs$1,495.00 Replacing garage remote$285.75 Exemplary damages$1,000.00 Filing fee reimbursement$20.44 Total award$32,036.17 Bond$3,000.00 Total amount tenants must pay the landlord$29,036.17

Reasons

Victoria Harlick and Chanelle Fenton attended the hearing for the landlord.
The tenants attended in person.
This is a rehearing. 1 The hearing was conducted de novo.
The landlord has applied for rent and water arrears, compensation for methamphetamine contamination-related costs and for damage, payment over of the bond, and reimbursement of the filing fee following the end of the tenancy. Background
The tenancy began on 30 August 2023.
Police executed a search warrant at the address on 2 November 2023. Mainstream media reported that: Armed police have uncovered a methamphetamine lab in Massey, West Auckland, while executing two search warrants, which also revealed guns and other illicit drugs.
Police charged Mr Mccaulay with drug offences including manufacturing methamphetamine. Mr Mccaulay pleaded guilty to that charge and is currently attending the Auckland District Court drug rehabilitation programme prior to sentence.
A photograph of the garage shows what appears to be chemicals and equipment consistent with methamphetamine manufacture.
Prior to the landlord’s own detailed methamphetamine testing of the premises, Police wrote to the landlord: ...scientific analysis of swabs taken from the address detected methamphetamine (excessive, likely due to manufacture).
The landlord’s methamphetamine testing returned results for pseudoephedrine and methamphetamine in the garage consistent with recent methamphetamine manufacture. Results of samples from the master bedroom and the ensuite were indicative of high consumption of methamphetamine in that area. The other samples showed that rest of the house was contaminated with methamphetamine residues consistent with methamphetamine consumption.
The owners noted damage had occurred during the tenancy, which included unauthorised paintwork and a cracked vanity 1 Of the Tribunal’s decision dated 10 June 2024.

How much is owed for rent, water, and the garage remote?

The tenancy ended on 22 November 2023.
The landlord provided rent records and water rates invoices which prove the amounts owing at the end of the tenancy.
Fifty percent of the water rates is ordered because the tenants say that there was a pipe leak that led to two excessive invoices for water use.
The tenants were given a garage remote at the beginning of the tenancy. The tenants had to return the remote at the tenancy. 2 The tenants say they left the remote in the premises. However, the landlord could not find the remote there or anywhere else. I am satisfied on the balance of probabilities that the tenants did not return the remote. It cost the landlord $285.75 to replace it. An order is made against the tenants for the cost.

Are the tenants liable for methamphetamine contamination?

The landlords apply 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 tenants caused or permitted the contamination, or that it was caused by someone at the premises with the tenants’ consent.
Section 138C of the 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. 2 Residential Tenancies Act, s 40(1)(e).
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 report observes: 3 Remediation is certainly warranted if high levels of methamphetamine are present that are indicative of manufacturing activity or excessive smoking. Levels >30 μg/100 cm2 are considered by forensic experts to signify that manufacture is likely to have taken place.
The District Court has held that remediation should be carried out in accordance with the prevailing guidelines at the time. 4
The Tribunal has generally applied the Gluckman recommendation. The District Court in Full Circle Real Estate Limited v Piper [2019] NZDC 4947 stated: 5 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.
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. 3 At 6.3. 4 Diamond Real Estate Limited v Allan [2017] NZDC 833. 5 At [36]. Discussion
The tenants deny manufacture occurred at the premises. However, Police opined that manufacture did occur at the premises. The test result for a sample taken the garage was 400μg/100cm 2 for methamphetamine. The published photograph of the garage indicates an active manufacturing process was occurring. Mr Mccaulay has pleaded guilty to manufacturing methamphetamine. Although, the landlord could not rely on pre-tenancy sampling, a kitchen blind supplied after the tenancy began returned a 2.37μg/100cm 2 result for methamphetamine.
I am satisfied on the balance of probabilities that the manufacture occurred at the premise and that Mr Mccaulay was the manufacturer.
The tenants accept consumption of methamphetamine which is consistent with the levels found in other parts of the house, albeit some of the samples returned high results for methamphetamine: a sample from the master bedroom returned
3μg/100cm 2 ; and a sample from the ensuite door returned 33.1μg/100cm 2 .
I am satisfied that the premises was contaminated with methamphetamine during the tenancy and that the tenants caused or permitted the contamination.
I had considered whether this was a situation where remediation might be limited to the areas that returned levels over 15μg/100cm 2 despite manufacture having occurred in the garage. However, the tests for each room were from isolated areas. Further sampling and testing for other parts of the rooms may have returned higher results. It would not have been sensible for the landlord to remediate only the parts of the house over the Gluckman level given the significant risk of harmful levels of contamination in all rooms of the house. Therefore, it is appropriate to order the costs to decontaminate all of the house not just the rooms proven to have contamination in excess of 15μg/100cm 2 . Orders for compensation
The methamphetamine testing costs are allowed.
The methamphetamine cleaning costs are allowed.
$3,000.00 of the $3,500.00 sought to replace the blinds and insulation is allowed. The reduction is mainly to account for depreciation of the insulation. The tenants should not have to subsidise betterment of the premises.
Fifty percent of the cost of replacing the carpet is allowed. The lesser amount is to account for depreciation.
The Tribunal orders the tenants to reimburse the landlord for rent loss from 23 November 2023 when the tenancy ended, to 31 January 2024, which is the date by which the premises was decontaminated and repaired. Exemplary damages
Tenants must not use the premises or permit the premises to be used for an unlawful purpose. 6
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. 7
It is unlawful to manufacture or use methamphetamine.
Mr Maccaulay manufactured methamphetamine at the premises. The tenants consumed methamphetamine and/or permitted other people to do so at the premises.
The tenants committed unlawful acts.
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 Tribunal may award exemplary damages 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 s 109 of the RTA. Section 109 of the RTA 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. 6 Residential Tenancies Act 1986 (RTA), s 40(2)(b). 7 RTA, s 40(3A)(c) and Schedule 1A.
The tenants knowingly breached their obligation not to commit drug offences in the premises. The effect was to contaminate the premises and cause the owners substantial cost and inconvenience. It is in the owners’ interests that exemplary damages are awarded. The public interest calls for a deterrent level of exemplary damages to deter other tenants who may be tempted to offend in this way. This kind of offending risks the health of other tenants or returning landlords for example. There is a public interest in protecting the community from such harm.
It is clearly just to make an award of exemplary damages.
Having regard to the matters discussed I set exemplary damages at $1,000.00 in this case.

Are the tenants liable for the damage to the premises?

The landlord claims the tenants damaged the premises by (poorly) painting several internal walls without permission, damaging five door handles, damaging the master bedroom door, cracking the ensuite vanity, and uplifting pavers.
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. 8
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. 9
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. 10
The landlord relies on an invoice for $2,415.00. In respect to that invoice, a patch “behind door” was not proven. I find dame to two of the five damaged door handles referred to proven. Damage to the door stoppers was not proven. 8 RTA, ss 40(2)(a), 41, and 49B. 9 RTA, s 49B(1). 10 See Guo v Korck [2019] NZHC 1541.
The damage to the vanity was proven on the balance of probabilities. The ducting grill damage was not proven. The dislodging of the pavers was not proven - drainage contractors may have done that. The ceiling damage was not proven.
The tenants submitted that the landlord had consented to them repainting the walls. The landlord denied that. The tenants could not provide any documentary evidence to support their submission. I am not satisfied that the landlord consented to the tenant’s painting the walls. The cost of repainting of the bedrooms and entrance walls was proven.
The tenants suggested Police damaged the vanity when officers climbed on it when searching the house. It is more probable the tenants damaged the vanity. Nor is it likely Police damaged the ensuite door handle and the master bedroom door handle. These handles would not have been locked when the house was searched so Police did not need to break them to gain entry to those rooms.
The proven damage is more than fair wear and tear, and the tenants have not disproved liability for the damage.
The Tribunal orders the tenants to pay $1,495.00 for the damage. Filing fee
The tenants must reimburse the landlord for the filing fee. 11 Bond
The landlord is to retain the bond, which the Bond Centre has already released to them.

Tenancy Tribunal case 4759258 — Cleanliness at 473 Don Buck Road, Massey, Auckland 0614

Tenancy Tribunal case 4759258 — Cleanliness at 473 Don Buck Road, Massey, Auckland 0614

Order

Reasons

How much is owed for rent, water, and the garage remote?

Are the tenants liable for methamphetamine contamination?

Are the tenants liable for the damage to the premises?

Property management

Order

Reasons

How much is owed for rent, water, and the garage remote?

Are the tenants liable for methamphetamine contamination?

Are the tenants liable for the damage to the premises?

Property management