Tenancy Tribunal Dismisses Landlord's Methamphetamine Testing Claim

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[2025] NZTT 5168204

TENANCY TRIBUNAL AT [Event location suppressed]

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: Unit/[ADDRESS], [ADDRESS], [POSTCODE]

ORDER

1. The Tribunal orders suppression of the tenant’s name and identifying details.

2. The landlord’s application is dismissed.

Reasons:

1. The landlord attended the hearing by telephone.

2. The tenant was telephoned three times but did not answer and so three messages were left.

3. The landlord’s application was for termination of the tenancy under section 56(1) Residential Tenancies Act 1986 (“RTA”) on the basis that the tenant has breached clause 3 of her tenancy agreement and section 40(2)(b) RTA by using the premises for an unlawful purpose by consuming methamphetamine. The landlord also claimed for reimbursement of the methamphetamine testing costs.

4. The onus of proof for establishing the claim is on the landlord. It must provide sufficient evidence to prove on the balance of probabilities that methamphetamine was used in the premises by the tenant, or some person on the tenancy premises with the tenant’s consent.

5. The consumption of an illegal substance is a serious allegation and the Tribunal needs to see a level of supporting evidence befitting the significance of the

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matters to be decided. In T v M [1984] 2 NZFLR, the Court of Appeal confirmed that, while “balance of probabilities” is a constant standard:

“It is the principle of good common sense that the more serious the issue the greater should be the care used in assessing it”.

6. This approach was confirmed by the majority of the Supreme Court in Z v Dental Complaints Assessment Committee [2008] NZSC 55, where the Court stated:

“[102] … In New Zealand it has been emphasised that no intermediate standard of proof exists, between the criminal and civil standards, for application in certain types of civil case. Balance of probabilities still simply means more probable than not. Allowing the civil standard to be applied flexibly has not meant that the degree of probability required to meet this standard changes in serious cases. Rather, the civil standard is flexibly applied because it accommodates serious allegations through the natural tendency to require stronger evidence before being satisfied to the balance of probabilities standard.”

The landlord’s evidence

7. The landlord provided the following evidence in support of its application:

a. The landlord conducted a routine property inspection of the premises and found a man [NAME] on a chair with a glass white pipe on a chair in front of him.

b. The police were notified and they visited the property but did not find the pipe or an [NAME] present.

c. A 14-day breach notice sent to the tenant on 12 February 2025 stating that the tenant or another person on the property had breached clause 4 [sic] of the tenancy agreement by “Drug paraphernalia was left in the garage on the chair at the time of the inspection with an unresponsive man on the chair.”

d. The landlord obtained two composite methamphetamine reports which the landlord advised showed the presence of methamphetamine contamination. Copies of the reports were not submitted in evidence.

e. The landlord advised that it did not have a methamphetamine report showing the absence of contamination at the start of the tenancy.

Discussion and decision

8. As noted, the actual reports showing that contamination had been confirmed were not submitted in evidence – only invoices for the testing. In the absence of such proof, the landlord’s claim must fail. The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated:

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“…[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”

9. If the Tribunal were to accept the landlord’s verbal evidence that the reports confirmed methamphetamine contamination at the premises, its claim must still fail because the landlord acknowledged that there was no methamphetamine test from the start of the tenancy showing that there was no contamination. The landlord cannot therefore prove on the balance of probabilities that the contamination occurred during the tenancy.

10. In the District Court decision of Anthony James Brooking v Colin Imrie [2021] NZDC 16976, Judge Cameron considered a case where the Tenancy Tribunal had accepted that contamination had been 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 odours arising from the premises. The witness also described gang members and other “undesirable” people attending the premises regularly, with cars regularly driving in an out of the premises, as well as regular visits from the police.

11. [ADDRESS] did not accept the evidence presented was sufficient to prove that methamphetamine had been used or manufactured on the premises, and concluded that:

“The difficulty with the landlord’s 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.”

12. The District Court allowed the appeal, overturning the Tribunal’s decision. In short, the District Court considered that there was no evidence to support the landlord’s claim that the tenants in that case had caused the contamination because there was no pre-tenancy testing undertaken to confirm that there was no contamination at the start of the tenancy.

13. That decision was similar to an earlier case from the District Court of Eren Limited v Louise Martin [2021] NZDC 15210 decided by Judge de Ridder. In that case, the Tribunal had declined the claim for the contamination costs, on various grounds, including that the landlord had not established that the tenant contaminated the premises in the first instance. The landlord appealed to the District Court.

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14. The landlord reported finding evidence of drug use in rubbish left by the tenants and that the neighbours had reported the tenants using drugs at the premises. The District Court confirmed that this was circumstantial evidence that could be considered by the Tribunal. However, the Court found that the circumstantial evidence was not sufficient to get over the absence of pre-tenancy methamphetamine testing and the landlord’s appeal was dismissed:

“[11] 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 they 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 weakened 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 the tenancy.”

15. The landlord has assumed that the white glass pipe was used for methamphetamine consumption and that the [NAME] was the person who had consumed the drug. This may not be an unreasonable assumption. However, the landlord has not submitted any proof that supports these assumptions. There is no evidence of what the white substance was or the reason for the man’s unconsciousness. These are serious allegations and the Tribunal needs strong evidence if it is to be persuaded on the balance of probabilities that the landlord’s assumptions are true.

16. The landlord’s claim for termination and reimbursement of the costs of methamphetamine testing must therefore be dismissed.

[NAME] 28 March 2025

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

Reasons: