Tenant Ordered to Pay Rent Arrears and Compensate for Damages

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[2025] NZTT 5138788

TENANCY TRIBUNAL AT WAITAKERE | TE TARAIPIUNARA RETIHANGA KI WAITĀKERE

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

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

ORDER

1. [NAME] and [NAME] must pay [COMPANY] As Agent For [NAME] $2,512.07 immediately, calculated as shown in the table below.

Description Landlord Tenant Rent arrears to 13 November 2024: $1,484.07 Rubbish removal: $351.00 Rubbish removal: couch $150.00 Repairs: insurance excesses $2,000.00 Filing fee reimbursement $27.00 Total award $4,012.07 Bond $1,500.00 Total payable by Tenant to Landlord $2,512.07

2. The Bond Centre is to pay the bond of $1,500.00 (6457624-002) to [COMPANY] As Agent For [NAME] immediately.

3. The landlord’s claims for costs/damage relating to alleged methamphetamine contamination are dismissed.

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Reasons:

1. [NAME], a representative of the landlord’s agent, attended the hearing on behalf of the landlord. [NAME] attended the hearing. [NAME] did not attend the hearing. [NAME] said she had authority to speak on behalf of [NAME].

2. The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. During the hearing, the landlord withdrew a claim for repair work that was not covered by insurance.

Relevant legal considerations:

3. With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that the party bringing the claim 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.

4. As noted by the District Court in Kaipo 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 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.

5. 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 during the hearing). I must weigh this evidence to decide what is more likely.

How much is owed for rent?

6. On 31 October 2024, the Tribunal issued an order terminating the tenancy and granting possession to the landlord on 08 November 2024. The landlord said that that the tenant did not move out until 12 November 2024 and the keys were

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not returned to until 13 November 2024. The tenant says that she cannot recall when she moved out of the premises. I find that the tenancy ended on 13 November 2024.

7. The landlord provided rent records in the form of a rent ledger. The tenant says she disputes the rent arrears claimed. The tenant says that two weeks’ rent was paid in advance. The landlord disputes that two weeks rent was paid in advance.

8. The tenant did not have any documentary evidence to support her assertion that the rent ledger was incorrect.

9. This claim is proved.

Did the premises become contaminated with methamphetamine during the tenancy? 10. The landlord says that the premises became contaminated with

methamphetamine during the tenancy. The landlord is seeking compensation of disposal a couch which the landlord says was contaminated with methamphetamine; testing costs; and the insurance excess for the insurance claim for methamphetamine contamination.

11. The landlord said that the premises was newly renovated at the start of the tenancy and that a test for methamphetamine was taken showing that the premises was not contaminated at the start of the tenancy. The landlord did not provide any documentary evidence of that report. The landlord also did not provide any testing results to prove that the premises was contaminated with methamphetamine at the end of the tenancy or what the level of contamination was.

12. The landlord did provide documentation from the [COMPANY] showing that the claim for methamphetamine contamination was accepted. Presumably this means that the [COMPANY] was satisfied that the premises was contaminated and that the level was such that decontamination work was required.

13. The tenant denies that methamphetamine was used on the premises during the tenancy.

14. As set out above, the onus for establishing the claim sits with the applicant, that is the landlord. It is the landlord that must provide sufficient evidence to prove to the balance of probabilities, that methamphetamine was used in the premises by the tenant, or some person on the tenancy with the tenant’s consent. The balance of probabilities means that what is alleged, is likely to be just over 50% likely to have occurred. The [COMPANY]’s acceptance of the claim for methamphetamine contamination goes some way to establishing that there was methamphetamine contamination at the end of the tenancy. However, the landlord has not established the level of contamination or that it is likely to have

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occurred during the tenancy, because there was no pre-tenancy methamphetamine testing undertaken.

15. I note the District Court decision of Anthony James Brooking v Colin Imrie [2021] NZDC 16976, Judge Cameron considered a case where the Tenancy Tribunal accepted there was contamination 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.

16. [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 landlords 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.

17. The District Court allowed the appeal, overturning the Tribunal’s decision. In short, the Court considered that there was no evidence to support that the tenants in that case caused the contamination because there was no pre-tenancy testing undertaken.

18. That decision was similar to an earlier case from the District Court of Eren Limited v Louise Martin [2021] NZDC 15210, 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 appeal to the District Court was by the landlord.

19. In that case, the landlord reported finding evidence of drug use in rubbish left by the tenants, and also that the neighbours had reported the tenants using drugs at the premises. The District Court confirmed that was circumstantial evidence that could be considered by the Tribunal. However, the landlord’s appeal was dismissed as Court found that the circumstantial evidence was not sufficient to get over the problem of no pre-tenancy methamphetamine testing:

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

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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.

20. In this case, I am not satisfied that the premises was contaminated with methamphetamine to a sufficient level to warrant de contamination. As I have not been provided with evidence of pre-tenancy methamphetamine testing, I am also not satisfied that the contamination occurred during the tenancy.

21. The landlord’s claim for testing and the insurance excess for decontamination work are dismissed.

22. I deal with the claim for disposal of the couch below.

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

23. Section 40(1)(e)(ii)-(v) of the Residential Tenancies Act 1986 (RTA) provides that 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. Section 40(1)(ca) of the RTA provides the tenant is required to replace worn out smoke alarm batteries during the tenancy. The tenant must also replace standard light bulbs.

24. The landlord has provided photographs from the start of the tenancy and from the end of the tenancy showing that the tenant left a significant amount of rubbish and other belongings at the premises. The tenant accepts that she left a couch, some other furniture and rubbish, however, she denies leaving multiple bags of rubbish in the garden shed. I find that the tenant did leave the rubbish including the coach and bags in the garden shed.

25. The landlord is claiming $201.00 (including GST) for disposal of rubbish. The landlord has provided invoices from Auckland Council for rubbish bags and disposal costs.

26. The landlord is also seeking labour costs to dispose of the rubbish. The landlord said that the landlord spent 6 hours disposing of the rubbish and has provided a handwritten invoice for $240.00. I accept that it would have taken around 6 hours to dispose of the rubbish. However, I consider the hourly rate of $25.00 to be fair and award $351.00 (including GST) being $201.00 for the costs referred to above and $150.00 for labour costs and

27. The landlord is claiming $345.00 for disposal of the couch left by the tenant. The landlord says the cost is so high because the couch was contaminated by meth and the Council would not accept it at the dump. As set out above, I am not satisfied that the premises were contaminated with methamphetamine during the tenancy. I award $150.00 (including GST) for disposal of the couch.

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Is the tenant responsible for the damage to the premises?

28. Sections 40(2)(a), 41 and 49B of the RTA provides that 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.

29. Section 49B(3)(a) of the RTA provides that 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).

30. Section 49B(3)(b) of the RTA provides that 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). Section 49B(3A)(a) of the RTA provides that where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage.

31. Section 49B(1) of the RTA provides that 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.

32. 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.)

33. The landlord says the following damage was caused during the tenancy: multiple wholes and other damage to the walls; damage to the carpets; damage to the door; and damage to the wardrobe. The landlord has provided photographs from the start and the end of the tenancy showing extensive damage to the premises at the end of the teanancy.

34. Apart from the carpet, the tenant does not accept that the damage was caused during the tenancy. The tenant says that some of the stains on the carpet were caused by her spilling drinks which is related to a medical issue.

35. I find that the damage was caused during the tenancy and that it was more than fair wear and tear. The tenant has not disproved that the damage was either intentional or careless. I accept the tenant’s claim that some of the stains may have been related to her medical issue. However, the tenant said she usually sits at the table to drink to avoid spilling things on the carpet. I find that not doing so was careless and that she is liable for this damage.

36. The landlord is claiming for the insurance excess (4 x $500 excess).

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37. The amounts ordered are proved.

Filing fee:

38. The landlord has substantially succeeded with the claim. For this reason, I have ordered reimbursement of the filing fee.

[NAME]

21 May 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.

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/

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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: