Tenant ordered to pay $23,800 for damages and meth contamination

__________________________________________________________________________________ 5215472 1

[2025] NZTT 5215472

TENANCY TRIBUNAL AT NORTH SHORE | TE TARAIPIUNARA RETIHANGA KI ŌKAHUKURA

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] must pay [COMPANY] As Agent For [NAME] $23,800.31 immediately, calculated as shown in table below.

Description Landlord Tenant Previous order application 5149771 dated 14/03/2025 $4,435.71 Repairs: New bathroom tap installed $320.00 Repairs: Window latch- master bedroom $80.00 Repairs: Strip wall paper, skim damage, paint wall $400.00 Repairs: Door and frame repair $350.00 Rubbish removal $760.00 Meth testing/Cleaning: Decontamination $13,673.50 Meth testing/Cleaning: Composite- 28 January 2025 $287.44 Meth testing/Cleaning: Discrete- 21 March 2025 $1,149.42 Lock/key replacement $517.24 Exemplary damages- unlawful use of the premises $1,800.00 Filing fee reimbursement $27.00 Total award $23,800.31 Total payable by Tenant to Landlord $23,800.31

2. This order incorporates the Tribunal order made on 14 March 2025 under application 5149771.

Reasons:

1. The landlord attended the hearing. The tenant did not.

__________________________________________________________________________________ 5215472 2

2. I am satisfied that the tenant had received proper notice of the hearing time, date and place and chose not to attend.

3. On 14 March 2025 the Tribunal made an order relating to this tenancy, for rent arrears of $7,195.00, refund of the bond and the filing fee. The previous order is incorporated into this order for enforcement purposes. The amount still owing from this order is $4,435.71.

4. The landlord has applied for compensation, exemplary damages, and reimbursement of the filing fee following the end of the tenancy.

Did the tenant comply with their obligations at the end of the tenancy?

5. At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.

6. The tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.

7. The tenant did not return the keys.

8. The amounts ordered are proved.

Is the tenant responsible for the damage to the premises?

9. 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. See sections 40(2)(a), 41 and 49B RTA.

10. Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.

11. Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.

12. Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the

__________________________________________________________________________________ 5215472 3

tenant's conduct, the [NAME] is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.

13. 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. See section 49B(1) RTA.

14. 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. See Guo v Korck [2019] NZHC 1541.

15. The following damage was caused during the tenancy:

a. Methamphetamine damage to walls, vents, carpets, fixtures and fittings;

b. Bathroom taps were snapped off and there was a wrench to turn them on and off. This damage was not reported to the landlord and the nature of the damage shows this damage was either from careless use or it was intentional damage;

c. The window latch in the master bedroom was broken. This damage was not reported to the landlord and the nature of the damage shows this damage was from careless use;

d. The premise had been newly wallpapered before the tenancy commenced. The wallpaper was peeled off the wall in the stairwell and was shredded from ceiling to floor. The wallpaper had to be stripped, damage to the wall repaired and the wall painted. This damage was not reported to the landlord and the nature of the damage shows this damage was intentional;

e. The door to the bedroom upstairs closest to the stairs had been intentionally kicked in and the frame had snapped with the force; and

f. The locks had to be changed (front door lock and dead bolt and laundry door.) The keys were snapped off in all the locks. The only way the landlord could enter the house at the end of the tenancy was to go through the garage.

16. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.

17. The amounts ordered are proved.

18. I have taken into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations, and should not be better or worse off. In calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.

__________________________________________________________________________________ 5215472 4

Methamphetamine contamination and associated costs

19. To make a successful claim for methamphetamine testing and/or remediation costs, the landlord must prove that the tenant caused or permitted the contamination, or that it was caused by [NAME] at the premises with the tenant’s consent. The landlord must also prove that, because of the contamination, the premises have been damaged or are not reasonably clean.

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

21. 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.

22. In May 2018 [NAME], 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/100cm2 was unlikely to have an adverse effect. It recommended retaining the level of 1.5μg/100cm2 where contamination resulted from manufacture, due to the risk posed by harmful chemicals used in the process.

23. The District Court has held that remediation should be carried out in accordance with the prevailing guidelines at the time (Diamond Real Estate Limited v Allan [2017] NZDC 833, Judge Kellar).

24. The Tribunal has generally applied the [NAME] 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 [NAME]. It would have been bold for the adjudicator to have ignored that report in favour of the New Zealand Standard given that the [NAME] report represents the current scientific knowledge on the risk to human health from methamphetamine contamination in dwellings.”

25. The District Court took a similar approach in [COMPANY] v [NAME] and others [2021] NZDC 3231, where the Court referred to the Full Circle case and

__________________________________________________________________________________ 5215472 5

held that, because NZS 8510:2017 has not been adopted into law, the Tribunal was not bound to apply the 1.5μg standard.

26. More recently, in [COMPANY] 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 [NAME].

27. The landlord’s evidence disclosed that the owner and [NAME] manager had seen drug paraphernalia at the premise that suggested the tenant may be using an illicit drug such as methamphetamine. As such, composite methamphetamine testing was carried out in January 2025 and then discrete testing was undertaken as soon as the tenancy ended.

28. The landlord had undertaken a comprehensive methamphetamine test of the premises, on 23 December 2024, just prior to the tenancy commencing. The test result came back showing that all room in the [NAME] had reading of < 0.02μg (micrograms) and this proved that no methamphetamine or related compounds (amphetamine, ephedrine, and pseudoephedrine was present in the premise and that the results were so low for all these compounds that it was below the current laboratory testing capability threshold of 0.02μg/100cm2.

29. The composite tests carried out on 28 January 2025 yielded an overall result of above 15μg for all rooms in the house and the garage. The comparison of the entry and this composite methamphetamine tests confirmed to the landlord that methamphetamine had been used in the premises during the tenant’s tenancy, either by the tenant or [NAME] at the premises with the tenant’s consent.

30. Composite tests make it difficult to ascertain whether one or more of the samples tested together are at a level greater than the 15μg/100cm2 level in the [NAME] report. Pg. 28 of the [NAME] report, which looks at composite tests and notes:

“Combining multiple samples taken throughout a dwelling into a single composite sample, as permitted in NZS 8510:2017, has limited value and cannot accurately reflect levels of risk, and depending on how the data are integrated can lead to quite misleading interpretation and false impressions of high exposure. This approach of composite analysis is promoted as a cost-effective option for initial screening, but it is in fact costly because it creates a bias towards detecting higher levels, and can falsely impose a requirement for further testing without identifying the areas (nor the actual levels) of potential contamination.

Given the low health risk in properties that were not used as meth labs, if they are to be tested, the initial screening should not involve composite field testing that could produce a false positive result – that is, detecting a level of 1.5 μg/100 cm2 (or slightly above) from a composite field sample that adds the readings from all swabs together. Such field composite testing means that every sample can be below the standard, but when combined can raise the overall result, triggering another round of expensive testing”.

__________________________________________________________________________________ 5215472 6

31. The [NAME] report advises against composite testing on the basis that composite testing can result in a false positive “that is, detecting a level of 1.5ug/100cm2 (or slightly above) from a composite field sample that adds the readings from all swabs together. Such field composite testing means that every sample can be below the standard, but when combined can raise the overall result, triggering another round of expensive testing.” That is, of course, correct. It would be possible that the 5 discrete swaps taken from the downstairs areas of the rental [NAME] would each show readings of 3.16μg/100cm2 which when added together as a composite would be 15.8μg/100cm2 and the 5 discrete swaps taken from the upstairs areas of the rental [NAME] would each show readings of 2.9μg/100cm2 which when added together as a composite would be 14.5μg/100cm2.

32. On 21 March 2025, the landlord had discrete methamphetamine testing carried out on the premise by an accredited testing facility. The results were as follows:

Sample locations Methamphetamine concentration in μg/100cm2

Kitchen- window frame 23

Living room- window frame 21

Bedroom 1 door 6.8

Bathroom- window frame 7.8

Laundry- door frame 10.5

Bedroom 2 - door 4.2

Bedroom 3- door 2.9

Garage - door 2.4

33. The landlord’s evidence proves methamphetamine contamination in the premise were at a level greater than the 15μg/100cm2 level in the [NAME] report and that the contamination level is also above the NZS 8510:2017 standard recommended maximum contamination levels of 1.5μg/100cm2 for high use areas (where contamination has resulted from both consumption and manufacture) and 3.8μg/100cm2 for limited use areas.

34. The tenant, or [NAME] in the rental premise with the tenant’s permission, has used methamphetamine in the rental premises during the tenancy because:

a. All rooms in the rental premise tested <0.02μg/100cm2 in the pre-tenancy comprehensive methamphetamine test;

__________________________________________________________________________________ 5215472 7

b. The tenancy composite tests shows that the rental premises have much higher levels of methamphetamine contamination than the pre-tenancy test results showed;

35. The post tenancy discrete testing results are all well above a level that could be deemed to be a false positive, two test results are higher than the contamination level of 15μg/100cm2 level in the [NAME] report and the remaining rooms have a contamination level that is also above the NZS 8510:2017 standard recommended maximum contamination levels of 1.5μg/100cm2 for high use areas (where contamination has resulted from both consumption and manufacture) and 3.8μg/100cm2 for limited use areas.

36. The landlord has applied for compensation for the cost of the methamphetamine composite ($ 287.44) and discrete testing ($1,149.42) and the cost of carrying out the decontamination of the premise ($13,673.50). The test results support the landlord’s compensation claims.

37. It is an offence under the Misuse of Drugs Act 1975 for any person to have in their possession or consume any controlled drug and to allow any premises to be used for the commission of an offence under that Act and (sections 7 and 12). “Methamphetamine” is included as a controlled drug under Schedule 1 of the Misuse of Drugs Act.

38. It follows that the consumption of methamphetamine on premises amounts to the use of those premises for an unlawful purpose, in breach of section 40(2)(b) RTA. The tenant was therefore in breach of his obligations under the RTA.

39. I am satisfied that it is appropriate in these circumstances to award the landlord the costs incurred in having the [NAME] tested for contamination on 28 January 2025 and on 21 March 2025, as it was prudent for the landlord to have the tests done, given the positive proof that methamphetamine was consumed in the [NAME] in breach of the tenant’s obligations.

40. The landlord has confirmed that the premise does not have insurance that will cover the methamphetamine testing and decontamination costs.

Is the tenant liable for exemplary damages?

41. The landlord claims the tenant has used the premises unlawfully, by consuming or allowing [NAME] with his consent to consume methamphetamine in the premises.

42. It is an offence under the Misuse of Drugs Act 1975 for any person to have in their possession or consume any controlled drug and to allow any premises to be used for the commission of an offence under that Act and (sections 7 and 12). “Methamphetamine” is included as a controlled drug under Schedule 1 of the Misuse of Drugs Act.

__________________________________________________________________________________ 5215472 8

43. A tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) Residential Tenancies Act 1986.

44. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. See section 40(3A)(c) and Schedule 1A Residential Tenancies Act 1986.

45. The landlord has established in evidence that methamphetamine has been used in the rental premises during the tenancy. This is because a pre-tenancy methamphetamine comprehensive test was carried out by the landlord just prior to the tenant’s tenancy commencing and the comprehensive test carried out at the end of the tenant’s tenancy established the presence of methamphetamine in the home in two high use rooms at a level that is higher than the contamination level of 15μg/100cm2 level in the [NAME] report, and the remaining rooms have a contamination level that is also above the NZS 8510:2017 standard recommended maximum contamination levels of 1.5μg/100cm2 for high use areas (where contamination has resulted from both consumption and manufacture) and 3.8μg/100cm2 for limited use areas and that was not present in the pre-tenancy testing.

46. I find the tenant has committed an unlawful act by consuming and/or allowing others to consume methamphetamine in the premises. I am satisfied that this was an intentionally unlawful act because it is common knowledge that the use of methamphetamine is illegal.

47. 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. See section 109(3) Residential Tenancies Act 1986.

48. I consider it appropriate in all of these circumstances outlined above to award $1,800.00 exemplary damages (the maximum amount of exemplary damages available under section 40(3A)(c) of the RTA). I make this finding on the following grounds:

a. Methamphetamine was found throughout the house. The levels ranged from 2.4 μg to 23 μg. The latter level is relatively high.

b. The impact on the owner cannot be understated. She will have to leave the premise vacant for months while she saves up to have all the remediation work done to remove the methamphetamine contamination before she can re-rent the premise. She has suffered stress and the inconvenience of trying to pay for testing and remediation work and having to pay a mortgage on a [NAME] she cannot rent out until the remediation work has been completed. She will suffer loss of rent until re-testing after the premise is fully decontaminated and she has proved to the Council that the

__________________________________________________________________________________ 5215472 9

premises are fit for purpose again and no longer represented a health risk to any occupier. Further, it is clearly in the public interests to discourage the use of methamphetamine in rental properties.

c. It is in the public interest to penalise tenants that use or allow rental premises to be used for unlawful purposes and acts as a deterrent to other tenants considering using or allowing methamphetamine to be smoked in rental premises.

Reimbursement of filing fee

49. [COMPANY] As Agent For [NAME] has wholly succeeded with the claim I must reimburse the filing fee.

[NAME]

09 June 2025

__________________________________________________________________________________ 5215472 10

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 [NAME] 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 [NAME].

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.

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/

__________________________________________________________________________________ 5215472 11

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].

Reasons: