What was the outcome of Tenancy Tribunal case 5008209?

The tribunal order states: Trivia Williams, Thomas Williams to pay Barfoot & Thompson Property Limited

How much money was awarded in case 5008209?

Property Damage: $2,500.00 awarded to landlord; Property Damage: $1,200.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Lawns and Garden Work: $46.00 awarded to landlord; Walls And Ceiling: $253.00 awarded to landlord; Replace Garage Remote: $276.00 awarded to landlord; Rubbish Removal: $120.75 awarded to landlord

What type of tenancy dispute was case 5008209?

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

Where can I read the official tribunal order for case 5008209?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12161692-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5008209?

The tribunal order states: Trivia Williams, Thomas Williams to pay Barfoot & Thompson Property Limited

How much money was awarded in case 5008209?

Property Damage: $2,500.00 awarded to landlord; Property Damage: $1,200.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Lawns and Garden Work: $46.00 awarded to landlord; Walls And Ceiling: $253.00 awarded to landlord; Replace Garage Remote: $276.00 awarded to landlord; Rubbish Removal: $120.75 awarded to landlord

What type of tenancy dispute was case 5008209?

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

Where can I read the official tribunal order for case 5008209?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12161692-Tribunal_Order.pdf.

68 Marina View Drive, West Harbour, Auckland 0618 Tenancy Tribunal Case 5008209 — Property damage

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68 Marina View Drive, West Harbour, Auckland 0618 Tenancy Tribunal Case 5008209 — Property damage | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 5008209 — net $2,978.79 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Replace garage remote	$276.00	Replace garage remote
Lawns and Garden work	$46.00	Lawns and Garden work
Rubbish removal	$120.75	Rubbish removal
Repairs: walls and ceiling	$253.00	Repairs: walls and ceiling
Compensation: insurance excess	$2,500.00	insurance excess
Exemplary damages (methamphetamine	$1,200.00	Exemplary damages (methamphetamine
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,978.79
Total payable by Tenant to Landlord	$2,978.79

Claims and awards for application 5008209 — net $2,978.79 NZD. Verify on MoJ.

Replace garage remote

Amount: $276.00
Awarded to: Landlord
Reason: Replace garage remote

Lawns and Garden work

Amount: $46.00
Awarded to: Landlord
Reason: Lawns and Garden work

Rubbish removal

Amount: $120.75
Awarded to: Landlord
Reason: Rubbish removal

Repairs: walls and ceiling

Amount: $253.00
Awarded to: Landlord
Reason: Repairs: walls and ceiling

Compensation: insurance excess

Amount: $2,500.00
Awarded to: Landlord
Reason: insurance excess

Dismissed claims

Cleaning — Rubbish removal
Compensation — I adopt the approach taken in the Gluckman Report that damage occurs, and decontamination is necessary when levels of methamphetamine residue exceed 15mcg/100c…

Claim types — money lines allowed on this order

Property damage Exemplary damages Filing Fee Lawns And Garden Work Rubbish Removal Cleanliness Compensation

Order

Trivia Williams, Thomas Williams to pay Barfoot & Thompson Property Limited As Agent For Xinrui, Wang & Zhimei, Xue $2,978.79 immediately, calculated as shown in the table below.
The Bond Centre is to pay the bond of $1,443.96 (5029456-003) to Barfoot & Thompson Property Limited As Agent For Xinrui, Wang & Zhimei, Xue immediately.

Reasons

The landlord attended the hearing. The tenant did not.
The landlord has applied for compensation, exemplary damages, refund of the bond and reimbursement of the filing fee following the end of the tenancy.
As the applicant, the landlord must prove their claim to the civil law standard of proof, on the balance of probabilities. This means that they must establish that what they are claiming is more likely than not. This 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 Katipo 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 of 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.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence at the hearing). I must weigh this evidence to decide what is more likely.

GARAGE DOOR REMOTE

At the end of a tenancy, the tenant must return all keys, security or pass cards, or other such devices, provided by the landlord for the use of the tenant. 1
The landlord gave evidence that the tenant did not return a garage remote provided to them at the beginning of the tenancy. I accept the landlord’s evidence.
The landlord has had the garage remote replaced and submitted an invoice for $276.00.
The landlord’s claim for compensation is granted for $276.00. 1 Residential Tenancies Act 1986, section 40(1)(e)(iv). CLEANING, RUBBISH REMOVAL & WEED REMOVAL
At the end of a tenancy, the tenant must leave the premises reasonably clean and tidy and remove all rubbish. 2
“Reasonably” clean means clean to the standard an average, reasonable bystander would consider reasonable. 3 It does not mean commercially clean, 4 spotless 5 or to a hotel or motel standard. 6 The better the premises and the higher the rent payable, the higher the standard expected. 7
The term “premises” includes “any land and appurtenances, other than facilities.” 8 Therefore, the obligation to leave the premises reasonably clean and tidy relates to the inside and outside of the premises.
The landlord claims the tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish. The landlord seeks compensation as follows: a. Internal cleaning and rubbish removal:$362.25 b. Weed removal:$46.00
The landlord submitted invoices for these amounts.
I deal with each issue individually below. Weed removal
The landlord submitted photographs taken at the beginning and end of the tenancy. In the photographs taken at the beginning of the tenancy, the garden is clean, tidy, and free from any weeds. In the photographs taken at the end of the tenancy, the garden is messy and has a lot of weeds.
On the balance of probabilities, I find the tenant did not leave the outside of the premises reasonably clean and tidy. The landlord’s claim for compensation of $46.00 to remove the weeds is granted. Cleaning
The photographs taken at the end of the tenancy show the inside of the premises in a reasonably clean and tidy condition. There is no rubbish or 2 Residential Tenancies Act 1986, section 40(1)(e)(iii). 3 Housing New Zealand v Holloway NZTT Auckland TT215/93, 8 February 1993 at [8]. 4 Mills v Kiwi Property Care Ltd NZTT Auckland TT215/93, 8 February 1993 at [8]. 5 Chang v Driscoll NZTT Christchurch TT2043/98, 21 July 1998 at [6]. 6 Richards v Scully NZTT Christchurch TT858/97, 8 May 1997 at [3]; Chang v Driscoll NZTT Christchurch TT2043/98, 21 July 1998 at [6]. 7 Westwood v Western [1994] DCR 759 at [770]. 8 Residential Tenancies Act 1986, section 2. personal belongings inside the premises, which appear to have been vacuumed and mopped. The bench surfaces have been wiped down and the bathroom appears to have been cleaned.
A tenant is not required to leave the premises in a pristine condition, only a reasonably clean and tidy one, which I find this tenant did.
The landlord’s claim for compensation for internal cleaning is dismissed. Rubbish removal
The landlord submitted photographs taken at the end of the tenancy, which show two additional outdoor bins were left by the tenant full of rubbish. This was disposed of by the cleaners hired by the landlord.
Although the tenant left the inside of the premises reasonably clean and tidy, they did not remove all rubbish.
The landlord submitted an invoice for $362.25 for cleaning and rubbish removal. The landlord’s claim for compensation for rubbish removal is granted for $120.75. This is one third of the total invoice, which I find fairly reflects the amount of rubbish left by the tenant and likely cost incurred to remove it. DAMAGE TO WALLS & CEILING
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. 9
The landlord submitted photographs of the premises taken at the beginning of the tenancy. No damage to any of the walls or ceiling is apparent in these photographs.
The landlord submitted photographs of the premises taken at the end of the tenancy. These photographs show attempted repair patches on some of the walls, which have not been completed professionally. The ceiling also appears to have been painted in a different colour in an attempt to cover up some damage.
On the balance of probabilities, I find the walls and ceiling were damaged during the tenancy. The damage is beyond fair wear and tear and the tenant has not disproved liability. 9 Residential Tenancies Act 1986, sections 40(2)(a), 41 & 49B.
The landlord submitted an invoice for $253.00 to repair the walls and ceiling.
The landlord’s claim for compensation is granted for $253.00.

METHAMPHETAMINE

The landlord claims the tenant or a person in the premises with the tenant’s permission used methamphetamine inside the premises during the tenancy.
The landlord claims the premises needed to be decontaminated, which delayed the date a new tenancy could begin.
The landlord seeks the following: a. Compensation of $2,500.00 to cover the landlord’s insurance excess. b. Compensation of $2,610.00 for lost rent between 17 August 2024 – 7 September 2024. c. Exemplary damages. The law
A tenant must not use, or permit the use of, the premises for any unlawful purpose. 10
A landlord must prove that the premises have been damaged during the tenancy and that the damage is the result of an 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. 11 The use or possession of methamphetamine is an imprisonable offence under section 7 of the Misuse of Drugs Act 1975.
If a landlord proves this, then a tenant is liable for the costs of “making good the damage” and other reasonably foreseeable losses related to the damage. 12
The Tribunal has previously found that damage occurs and decontamination is necessary when levels of methamphetamine contamination are above 15mcg/100cm². 13 This is the level adopted by the authors of what is colloquially known as the Gluckman Report dated 29 May 2018 (“the Gluckman Report”). 14 10 Residential Tenancies Act 1986, section 40(2)(b). 11 Residential Tenancies Act 1986, section 49B(8)(a). 12 Residential Tenancies Act 1986, sections 49A & 49B(1)(b). 13 Full Circle Real Estate Limited v Piper [2019] NZDC 4797. 14 Methamphetamine contamination in residential properties: Exposure, risk levels and interpretation of standards.” 29 May 2018 – Professor Gluckman – Prime Minister’s chief science advisor; (The Gluckman Report).
The Gluckman report concludes that there is no evidence of risk of harm from second or third hand exposure to methamphetamine residue measured at or less than 15mcg/100cm², unless there is evidence to suggest that the premises have been used for manufacture.
Neither the Gluckman Report nor the previously used New Zealand Standard NZS 8510:2017 15 (NZS), which recommend a level of 1.5mcg/100cm² are embedded into law, they both represent guidelines and are not regulatory.
In Full Circle Real Estate v Piper, the District Court considered whether the Tribunal erred in applying the Gluckman level of 15mcg/100cm² instead of the NZS of 1.5mcg/100cm². The District Court held: 16 It would have been bold for the adjudicator to have ignored that report (the Gluckman 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.
To summarise, the general approach of the Tribunal when determining claims for decontamination due to the presence of methamphetamine residue is as follows: a. Methamphetamine residue of below 15mcg/100cm² does not cause damage to residential tenancy premises unless there is evidence of manufacturing; b. In premises or parts of premises, where residue is higher than 15mcg/100cm², this is considered damage and decontamination of those areas is appropriate; and c. Residue levels of higher than 30mcg/100cm² indicate a high level of use and may be indicative of manufacturing. Decontamination of premises to the lower level of below 1.5mcg/100cm² is justified. Landlord’s evidence and submissions
The landlord submitted a Certificate of Analysis from Hill Laboratories dated 11 November 2022, which records a composite result of <0.02mcg/100cm² for methamphetamine residue.
The landlord submitted a Certificate of Analysis from Hill Laboratories dated 9 August 2024, which records a composite result of 25mcg/100cm² for methamphetamine residue. 15 NZS 8510:2017 New Zealand Standard – testing and decontamination of methamphetamine contaminated properties. 16 Full Circle Real Estate Limited v Piper [2019] NZDC 479 at [36].
As a result of the readings contained in the Certificate of Analysis dated 9 August 2024, the landlord undertook decomposition testing to identify what area of the premises the methamphetamine residue was in. This cost $345.00.
Following the decomposition testing, the landlord undertook individual testing at a cost of $3,795.00. The results of the individual samples were recorded by Meth Detect NZ in a report dated 15 August 2024. Paul Lamb from Meth Detect NZ attended the hearing and confirmed that the report contains a typo regarding the date the individual samples were taken. It states the individual samples were taken “on October 2022” however, Mr Lamb gave evidence that the individual samples were taken on 13 August 2024.
The highest reading shown in the individual sample test results is
5mcg/100cm² in the garage (top lefthand side panel door). Other high readings include 12.5mcg/100cm² in the lounge (top of single French door, window and above stilt) and 11.6mcg/100cm² in the downstairs toilet (from extractor fan right hand side).
The landlord claims the premises needed to be decontaminated, as the readings were above the NZS of 1.5mcg/100cm².
The landlord filed a claim with their insurer, which was accepted. The landlord paid an excess of $2,500.00. This covered the costs of testing (decomposition, individual and post-decontamination) and decontamination.
The landlord gave evidence that they had to delay the start date of the new tenancy from 17 August 2024 to 7 September 2024 whilst decontamination took place. This means that they missed out on 3 weeks rent at $870.00 per week. Analysis
This tenancy began on 9 December 2022 and ended on 5 August 2024.
The landlord has submitted a Certificate of Analysis dated 11 November 2022, shortly before the tenancy began. It records a composite result of <0.02mcg/100cm² for methamphetamine residue inside the premises.
The landlord had the premises tested again shortly following the end of the tenancy. A Certificate of analysis dated 9 November 2024 records a composite result of 25mcg/100cm² for methamphetamine residue inside the premises.
A comparison of these Certificates of Analysis shows an increase in the presence of methamphetamine residue inside the premises at the end of the tenancy, compared to the beginning. This convinces me on the balance of probabilities that the tenant, or a person in the premises with the tenant’s permission, used methamphetamine inside the premises during the tenancy.
On the basis of the testing results taken at the end of the tenancy, it was reasonable for the landlord to undertake decomposition and individual testing. The costs of these two tests were covered by the landlord’s insurance. The landlord’s insurance also covered the cost of decontamination.
The landlord paid an excess of $2,500.00 for their insurance. For reasons discussed below, I find the premises did not require decontamination. Notwithstanding this, the tenant should still reimburse the landlord the cost of the insurance excess, as this is less than the costs for the decomposition and individual testing, which were $345.00 and $3,795.00 each.
The landlord’s claim for compensation to cover their insurance excess is granted for $2,500.00.
The landlord’s claim for compensation of three weeks rent whilst the premises underwent decontamination is dismissed. I adopt the approach taken in the Gluckman Report that damage occurs, and decontamination is necessary when levels of methamphetamine residue exceed 15mcg/100cm² or there is evidence of manufacture. None of the individual samples returned a reading higher than 15mcg/100cm² and no evidence of manufacture was submitted. Therefore, I find decontamination was not required and the landlord did not need to delay re- tenanting the premises for this purpose.

EXEMPLARY DAMAGES

The law

I have found that the tenant use or permitted the use of the premises for an unlawful purpose. This is an unlawful act, for which exemplary damages up to a maximum of $1,800.00 may be ordered. 17
Section 109 RTA states that exemplary damages may be awarded if the unlawful act was committed intentionally and the Tribunal determines it is just to make an award having regard to the following factors: 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; and d. The public interest. 17 Residential Tenancies Act 1986, section 40(3A)(c) and Schedule 1A.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (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.
In the District Court decision of Birch v Otautahi Community Housing Trust [2020] NZDC 17667, the Court needed to consider a case where the landlord had unlawfully entered the tenancy. That was not disputed. The evidence was that because of a misunderstanding around notices being given, the landlord went into the tenancy without the necessary notice having first being served on the tenant.
Judge Neave in the District Court agreed with an earlier summary of the law from the Tribunal that: 18 Before an award for exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it.
Judge Neave went on to accept that the unlawful entry was made in error, and on that basis there was no intention established, therefore there was no basis to order exemplary damages. Analysis
I find the tenant most likely acted intentionally when they used or permitted someone at the premises with the tenant’s permission to use methamphetamine inside the premises. No evidence to the contrary was submitted and it is difficult to conceive of a situation where the tenant would have consumed methamphetamine accidentally.
I find it just to make an order for exemplary damages in this case for the following reasons: 18 Chief Executive, ex party Edmonson v Walls North Shore TT 548/92. a. The effect the unlawful act has had on the premises has been of great concern to the landlord who has had the premises decontaminated. b. The landlord has incurred financial loss by having to make a claim with their insurer and pay an excess of $2,500.00. The landlord also delayed re- tenanting the premises because they were concerned about the level of methamphetamine. c. There is a strong public interest in ensuring tenants are deterred from using or permitting someone at the premises with the tenant’s permission from using methamphetamine inside the premises. Methamphetamine use inside the premises has the potential to cause significant damage. d. The highest reading in this case was 14.5mcg/100cm², which is only
5mg/100cm² off the level required to decontaminate. I consider this to be a significant aggravating factor.
Considering the above factors, I order the tenant to pay exemplary damages of $1,200.00.

FILING FEE

Because Barfoot & Thompson Property Limited As Agent For Xinrui, Wang & Zhimei, Xue has substantially succeeded with the claim I have reimbursed the filing fee.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 5008209 — net $2,978.79 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Replace garage remote	$276.00	Replace garage remote
Lawns and Garden work	$46.00	Lawns and Garden work
Rubbish removal	$120.75	Rubbish removal
Repairs: walls and ceiling	$253.00	Repairs: walls and ceiling
Compensation: insurance excess	$2,500.00	insurance excess
Exemplary damages (methamphetamine	$1,200.00	Exemplary damages (methamphetamine
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,978.79
Total payable by Tenant to Landlord	$2,978.79

Claims and awards for application 5008209 — net $2,978.79 NZD. Verify on MoJ.

Replace garage remote

Amount: $276.00
Awarded to: Landlord
Reason: Replace garage remote

Lawns and Garden work

Amount: $46.00
Awarded to: Landlord
Reason: Lawns and Garden work

Rubbish removal

Amount: $120.75
Awarded to: Landlord
Reason: Rubbish removal

Repairs: walls and ceiling

Amount: $253.00
Awarded to: Landlord
Reason: Repairs: walls and ceiling

Compensation: insurance excess

Amount: $2,500.00
Awarded to: Landlord
Reason: insurance excess

Dismissed claims

Cleaning — Rubbish removal
Compensation — I adopt the approach taken in the Gluckman Report that damage occurs, and decontamination is necessary when levels of methamphetamine residue exceed 15mcg/100c…

Claim types — money lines allowed on this order

Property damage Exemplary damages Filing Fee Lawns And Garden Work Rubbish Removal Cleanliness Compensation

Order

Trivia Williams, Thomas Williams to pay Barfoot & Thompson Property Limited As Agent For Xinrui, Wang & Zhimei, Xue $2,978.79 immediately, calculated as shown in the table below.
The Bond Centre is to pay the bond of $1,443.96 (5029456-003) to Barfoot & Thompson Property Limited As Agent For Xinrui, Wang & Zhimei, Xue immediately.

Reasons

The landlord attended the hearing. The tenant did not.
The landlord has applied for compensation, exemplary damages, refund of the bond and reimbursement of the filing fee following the end of the tenancy.
As the applicant, the landlord must prove their claim to the civil law standard of proof, on the balance of probabilities. This means that they must establish that what they are claiming is more likely than not. This 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 Katipo 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 of 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.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence at the hearing). I must weigh this evidence to decide what is more likely.

GARAGE DOOR REMOTE

At the end of a tenancy, the tenant must return all keys, security or pass cards, or other such devices, provided by the landlord for the use of the tenant. 1
The landlord gave evidence that the tenant did not return a garage remote provided to them at the beginning of the tenancy. I accept the landlord’s evidence.
The landlord has had the garage remote replaced and submitted an invoice for $276.00.
The landlord’s claim for compensation is granted for $276.00. 1 Residential Tenancies Act 1986, section 40(1)(e)(iv). CLEANING, RUBBISH REMOVAL & WEED REMOVAL
At the end of a tenancy, the tenant must leave the premises reasonably clean and tidy and remove all rubbish. 2
“Reasonably” clean means clean to the standard an average, reasonable bystander would consider reasonable. 3 It does not mean commercially clean, 4 spotless 5 or to a hotel or motel standard. 6 The better the premises and the higher the rent payable, the higher the standard expected. 7
The term “premises” includes “any land and appurtenances, other than facilities.” 8 Therefore, the obligation to leave the premises reasonably clean and tidy relates to the inside and outside of the premises.
The landlord claims the tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish. The landlord seeks compensation as follows: a. Internal cleaning and rubbish removal:$362.25 b. Weed removal:$46.00
The landlord submitted invoices for these amounts.
I deal with each issue individually below. Weed removal
The landlord submitted photographs taken at the beginning and end of the tenancy. In the photographs taken at the beginning of the tenancy, the garden is clean, tidy, and free from any weeds. In the photographs taken at the end of the tenancy, the garden is messy and has a lot of weeds.
On the balance of probabilities, I find the tenant did not leave the outside of the premises reasonably clean and tidy. The landlord’s claim for compensation of $46.00 to remove the weeds is granted. Cleaning
The photographs taken at the end of the tenancy show the inside of the premises in a reasonably clean and tidy condition. There is no rubbish or 2 Residential Tenancies Act 1986, section 40(1)(e)(iii). 3 Housing New Zealand v Holloway NZTT Auckland TT215/93, 8 February 1993 at [8]. 4 Mills v Kiwi Property Care Ltd NZTT Auckland TT215/93, 8 February 1993 at [8]. 5 Chang v Driscoll NZTT Christchurch TT2043/98, 21 July 1998 at [6]. 6 Richards v Scully NZTT Christchurch TT858/97, 8 May 1997 at [3]; Chang v Driscoll NZTT Christchurch TT2043/98, 21 July 1998 at [6]. 7 Westwood v Western [1994] DCR 759 at [770]. 8 Residential Tenancies Act 1986, section 2. personal belongings inside the premises, which appear to have been vacuumed and mopped. The bench surfaces have been wiped down and the bathroom appears to have been cleaned.
A tenant is not required to leave the premises in a pristine condition, only a reasonably clean and tidy one, which I find this tenant did.
The landlord’s claim for compensation for internal cleaning is dismissed. Rubbish removal
The landlord submitted photographs taken at the end of the tenancy, which show two additional outdoor bins were left by the tenant full of rubbish. This was disposed of by the cleaners hired by the landlord.
Although the tenant left the inside of the premises reasonably clean and tidy, they did not remove all rubbish.
The landlord submitted an invoice for $362.25 for cleaning and rubbish removal. The landlord’s claim for compensation for rubbish removal is granted for $120.75. This is one third of the total invoice, which I find fairly reflects the amount of rubbish left by the tenant and likely cost incurred to remove it. DAMAGE TO WALLS & CEILING
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. 9
The landlord submitted photographs of the premises taken at the beginning of the tenancy. No damage to any of the walls or ceiling is apparent in these photographs.
The landlord submitted photographs of the premises taken at the end of the tenancy. These photographs show attempted repair patches on some of the walls, which have not been completed professionally. The ceiling also appears to have been painted in a different colour in an attempt to cover up some damage.
On the balance of probabilities, I find the walls and ceiling were damaged during the tenancy. The damage is beyond fair wear and tear and the tenant has not disproved liability. 9 Residential Tenancies Act 1986, sections 40(2)(a), 41 & 49B.
The landlord submitted an invoice for $253.00 to repair the walls and ceiling.
The landlord’s claim for compensation is granted for $253.00.

METHAMPHETAMINE

The landlord claims the tenant or a person in the premises with the tenant’s permission used methamphetamine inside the premises during the tenancy.
The landlord claims the premises needed to be decontaminated, which delayed the date a new tenancy could begin.
The landlord seeks the following: a. Compensation of $2,500.00 to cover the landlord’s insurance excess. b. Compensation of $2,610.00 for lost rent between 17 August 2024 – 7 September 2024. c. Exemplary damages. The law
A tenant must not use, or permit the use of, the premises for any unlawful purpose. 10
A landlord must prove that the premises have been damaged during the tenancy and that the damage is the result of an 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. 11 The use or possession of methamphetamine is an imprisonable offence under section 7 of the Misuse of Drugs Act 1975.
If a landlord proves this, then a tenant is liable for the costs of “making good the damage” and other reasonably foreseeable losses related to the damage. 12
The Tribunal has previously found that damage occurs and decontamination is necessary when levels of methamphetamine contamination are above 15mcg/100cm². 13 This is the level adopted by the authors of what is colloquially known as the Gluckman Report dated 29 May 2018 (“the Gluckman Report”). 14 10 Residential Tenancies Act 1986, section 40(2)(b). 11 Residential Tenancies Act 1986, section 49B(8)(a). 12 Residential Tenancies Act 1986, sections 49A & 49B(1)(b). 13 Full Circle Real Estate Limited v Piper [2019] NZDC 4797. 14 Methamphetamine contamination in residential properties: Exposure, risk levels and interpretation of standards.” 29 May 2018 – Professor Gluckman – Prime Minister’s chief science advisor; (The Gluckman Report).
The Gluckman report concludes that there is no evidence of risk of harm from second or third hand exposure to methamphetamine residue measured at or less than 15mcg/100cm², unless there is evidence to suggest that the premises have been used for manufacture.
Neither the Gluckman Report nor the previously used New Zealand Standard NZS 8510:2017 15 (NZS), which recommend a level of 1.5mcg/100cm² are embedded into law, they both represent guidelines and are not regulatory.
In Full Circle Real Estate v Piper, the District Court considered whether the Tribunal erred in applying the Gluckman level of 15mcg/100cm² instead of the NZS of 1.5mcg/100cm². The District Court held: 16 It would have been bold for the adjudicator to have ignored that report (the Gluckman 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.
To summarise, the general approach of the Tribunal when determining claims for decontamination due to the presence of methamphetamine residue is as follows: a. Methamphetamine residue of below 15mcg/100cm² does not cause damage to residential tenancy premises unless there is evidence of manufacturing; b. In premises or parts of premises, where residue is higher than 15mcg/100cm², this is considered damage and decontamination of those areas is appropriate; and c. Residue levels of higher than 30mcg/100cm² indicate a high level of use and may be indicative of manufacturing. Decontamination of premises to the lower level of below 1.5mcg/100cm² is justified. Landlord’s evidence and submissions
The landlord submitted a Certificate of Analysis from Hill Laboratories dated 11 November 2022, which records a composite result of <0.02mcg/100cm² for methamphetamine residue.
The landlord submitted a Certificate of Analysis from Hill Laboratories dated 9 August 2024, which records a composite result of 25mcg/100cm² for methamphetamine residue. 15 NZS 8510:2017 New Zealand Standard – testing and decontamination of methamphetamine contaminated properties. 16 Full Circle Real Estate Limited v Piper [2019] NZDC 479 at [36].
As a result of the readings contained in the Certificate of Analysis dated 9 August 2024, the landlord undertook decomposition testing to identify what area of the premises the methamphetamine residue was in. This cost $345.00.
Following the decomposition testing, the landlord undertook individual testing at a cost of $3,795.00. The results of the individual samples were recorded by Meth Detect NZ in a report dated 15 August 2024. Paul Lamb from Meth Detect NZ attended the hearing and confirmed that the report contains a typo regarding the date the individual samples were taken. It states the individual samples were taken “on October 2022” however, Mr Lamb gave evidence that the individual samples were taken on 13 August 2024.
The highest reading shown in the individual sample test results is
5mcg/100cm² in the garage (top lefthand side panel door). Other high readings include 12.5mcg/100cm² in the lounge (top of single French door, window and above stilt) and 11.6mcg/100cm² in the downstairs toilet (from extractor fan right hand side).
The landlord claims the premises needed to be decontaminated, as the readings were above the NZS of 1.5mcg/100cm².
The landlord filed a claim with their insurer, which was accepted. The landlord paid an excess of $2,500.00. This covered the costs of testing (decomposition, individual and post-decontamination) and decontamination.
The landlord gave evidence that they had to delay the start date of the new tenancy from 17 August 2024 to 7 September 2024 whilst decontamination took place. This means that they missed out on 3 weeks rent at $870.00 per week. Analysis
This tenancy began on 9 December 2022 and ended on 5 August 2024.
The landlord has submitted a Certificate of Analysis dated 11 November 2022, shortly before the tenancy began. It records a composite result of <0.02mcg/100cm² for methamphetamine residue inside the premises.
The landlord had the premises tested again shortly following the end of the tenancy. A Certificate of analysis dated 9 November 2024 records a composite result of 25mcg/100cm² for methamphetamine residue inside the premises.
A comparison of these Certificates of Analysis shows an increase in the presence of methamphetamine residue inside the premises at the end of the tenancy, compared to the beginning. This convinces me on the balance of probabilities that the tenant, or a person in the premises with the tenant’s permission, used methamphetamine inside the premises during the tenancy.
On the basis of the testing results taken at the end of the tenancy, it was reasonable for the landlord to undertake decomposition and individual testing. The costs of these two tests were covered by the landlord’s insurance. The landlord’s insurance also covered the cost of decontamination.
The landlord paid an excess of $2,500.00 for their insurance. For reasons discussed below, I find the premises did not require decontamination. Notwithstanding this, the tenant should still reimburse the landlord the cost of the insurance excess, as this is less than the costs for the decomposition and individual testing, which were $345.00 and $3,795.00 each.
The landlord’s claim for compensation to cover their insurance excess is granted for $2,500.00.
The landlord’s claim for compensation of three weeks rent whilst the premises underwent decontamination is dismissed. I adopt the approach taken in the Gluckman Report that damage occurs, and decontamination is necessary when levels of methamphetamine residue exceed 15mcg/100cm² or there is evidence of manufacture. None of the individual samples returned a reading higher than 15mcg/100cm² and no evidence of manufacture was submitted. Therefore, I find decontamination was not required and the landlord did not need to delay re- tenanting the premises for this purpose.

EXEMPLARY DAMAGES

The law

I have found that the tenant use or permitted the use of the premises for an unlawful purpose. This is an unlawful act, for which exemplary damages up to a maximum of $1,800.00 may be ordered. 17
Section 109 RTA states that exemplary damages may be awarded if the unlawful act was committed intentionally and the Tribunal determines it is just to make an award having regard to the following factors: 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; and d. The public interest. 17 Residential Tenancies Act 1986, section 40(3A)(c) and Schedule 1A.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (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.
In the District Court decision of Birch v Otautahi Community Housing Trust [2020] NZDC 17667, the Court needed to consider a case where the landlord had unlawfully entered the tenancy. That was not disputed. The evidence was that because of a misunderstanding around notices being given, the landlord went into the tenancy without the necessary notice having first being served on the tenant.
Judge Neave in the District Court agreed with an earlier summary of the law from the Tribunal that: 18 Before an award for exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it.
Judge Neave went on to accept that the unlawful entry was made in error, and on that basis there was no intention established, therefore there was no basis to order exemplary damages. Analysis
I find the tenant most likely acted intentionally when they used or permitted someone at the premises with the tenant’s permission to use methamphetamine inside the premises. No evidence to the contrary was submitted and it is difficult to conceive of a situation where the tenant would have consumed methamphetamine accidentally.
I find it just to make an order for exemplary damages in this case for the following reasons: 18 Chief Executive, ex party Edmonson v Walls North Shore TT 548/92. a. The effect the unlawful act has had on the premises has been of great concern to the landlord who has had the premises decontaminated. b. The landlord has incurred financial loss by having to make a claim with their insurer and pay an excess of $2,500.00. The landlord also delayed re- tenanting the premises because they were concerned about the level of methamphetamine. c. There is a strong public interest in ensuring tenants are deterred from using or permitting someone at the premises with the tenant’s permission from using methamphetamine inside the premises. Methamphetamine use inside the premises has the potential to cause significant damage. d. The highest reading in this case was 14.5mcg/100cm², which is only
5mg/100cm² off the level required to decontaminate. I consider this to be a significant aggravating factor.
Considering the above factors, I order the tenant to pay exemplary damages of $1,200.00.

FILING FEE

Because Barfoot & Thompson Property Limited As Agent For Xinrui, Wang & Zhimei, Xue has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 5008209 — Property damage at 68 Marina View Drive, West Harbour, Auckland 0618

At a glance

Tenancy Tribunal case 5008209 — Property damage at 68 Marina View Drive, West Harbour, Auckland 0618

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

GARAGE DOOR REMOTE

METHAMPHETAMINE

EXEMPLARY DAMAGES

FILING FEE

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

GARAGE DOOR REMOTE

METHAMPHETAMINE

EXEMPLARY DAMAGES

FILING FEE

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions