Nisbet v Landlord
[2025] NZHC 2467
•27 August 2025
NOTE: PUBLICATION OF THE NAME AND IDENTIFYING PARTICULARS OF THE LANDLORD ARE SUPRESSED BY AN ORDER MADE IN [2024] NZTT 4926295 IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2025-485-333
[2025] NZHC 2467
IN THE MATTER of an appeal under s 119 of the Residential Tenancies Act 1986 BETWEEN
DAVINA ANNA MARIE NISBET
Appellant
AND
LANDLORD
Respondent
Hearing: 18 August 2025 Appearances:
Appellant in person
N P Tetzlaff for Respondent
Judgment:
27 August 2025
JUDGMENT OF GRICE J
(Appeal)
[1] The appellant, Davina Nisbet, is the tenant of a residential property in Porirua (the property). The respondent is the landlord of that property.
[2] On 23 August 2024 the Tenancy Tribunal (Tribunal) granted an application by the respondent to terminate Ms Nisbet’s tenancy of the property, on the basis that the property was uninhabitable due to methamphetamine contamination.1 It also ordered the respondent to pay Ms Nisbet $3,390 as a rent abatement, equivalent to the roughly
1 [Landlord] v Nisbet [2024] NZTT 4926295 [Tribunal decision].
NISBET v LANDLORD [2025] NZHC 2467 [27 August 2025]
four months she had been living in an unsafe home, since the respondent became aware of the methamphetamine contamination.
[3] Ms Nisbet appealed. In his decision of 23 April 2025, Judge Kelly upheld the Tribunal’s order terminating Ms Nisbet’s tenancy. He held that the tenancy was properly terminated by the Tribunal under s 59B of the Residential Tenancies Act 1986 (the Act). He ordered her to vacate the property by 21 May 2025.2
[4] Ms Nisbet now appeals the District Court decision. A stay of enforcement is in operation pending the outcome of the appeal.3 Ms Nisbet remains in occupation of the tenancy and is paying rent.
The Tenancy Tribunal’s decision
[5] The respondent applied to the Tenancy Tribunal to terminate Ms Nisbet’s tenancy on three grounds.
[6] The first ground was that Ms Nisbet had breached her obligations under s 42(1)(a) of the Act and cl 29 of the tenancy agreement not to make any renovation, alteration, or addition of or to the premises, except in accordance with the tenancy agreement or with the prior written consent of the landlord. The respondent argued Ms Nisbet had breached her obligations by:4
a.Erecting a fence without its written consent;
b.Erecting a terraced garden that required significant modification to the premises such as the building of a retaining wall, installing electrical wiring and building four terraces of boxing for the gardens;
c.Renovated the bathroom (removing the bathtub and installing a spa bath and renovating the shower and tiling);
d.Installing outdoor sensor lighting;
e.Installing cameras;
f.Creating an unconsented room in the basement and cutting a hole in the hallway to create an internal access to the basement; and
2 Nisbet v [Landlord] [2025] NZDC 7893 [DC decision].
3 Nisbet v [Landlord] HC Wellington CIV-2025-485-333, 22 May 2025 (Minute of Gwyn J).
4 Tribunal decision, above n 1, at [9].
g.Installing and modifying [illegal] electrical wiring inside the premise.
[7] The adjudicator declined to make an order terminating the tenancy under s 56 of the Act. That allows termination by the Tribunal where, due to the nature or the extent of the breach it would be inequitable to refuse to terminate.5 The Tribunal gave two reasons: first, the breaches were all capable of remedy but the respondent had not given Ms Nisbet a 14-day notice specifying the breaches complained of and requiring her to remedy them;6 and secondly, a termination order would not be equitable when the respondent (through four property managers) had given continuous implied consent to the alterations to the property by allowing the modifications to remain in place, had failed to issue a 14-day notice, and had praised one major modification by including it in its landlord newsletter.7
[8] The second ground was that Ms Nisbet had breached the tenancy agreement through her modifications to the property, and that those modifications rendered the property uninhabitable under s 59A of the Act. The respondent had given Ms Nisbet a letter on 9 May 2024 requiring her to vacate the property immediately to enable an assessment and remedial work to be undertaken.8 The adjudicator implicitly found that the illegal electrical work carried out by Ms Nisbet’s son for the unconsented basement room was a breach of the tenancy agreement. The adjudicator accepted that there was a risk of electrocution or fire resulting from the electrical work. While all illegal wiring had been removed, the extensive tampering meant a risk remained such that the entire property required rewiring. Until that could take place, there remained a threat to the inhabitants’ lives. The adjudicator held that risk of fire or electrocution combined with the high methamphetamine levels in the dining room did make the property uninhabitable under s 59A.9
[9] Despite these findings, the adjudicator declared that the respondent’s notice to vacate the property immediately was unlawful because under s 59A it was required to give Ms Nisbet no less than 7 days’ notice.10
5 Residential Tenancies Act 1986, s 56(1).
6 Tribunal decision, above n 1, at [12].
7 At [14].
8 At [28].
9 At [30].
10 At [30].
[10] The adjudicator went on to apply s 56 — apparently undertaking a separate assessment in respect of the electrical modifications. The adjudicator found that, had the respondent given Ms Nisbet a 14-day notice under s 56 and had she not complied with it to remedy the breach, it would be inequitable to refuse to make an order terminating the tenancy. However, because the respondent had not given Ms Nisbet an opportunity to remedy the breach, the claim would be dismissed.11
[11] The third ground was that the property was rendered uninhabitable due to methamphetamine contamination, with testing undertaken in accordance with a “relevant prescribed method” under s 59B. Methamphetamine testing carried out on
18 March 2024 yielded results that show the property tested positive for methamphetamine contamination at varying levels:12
a. 0.55μg/100cm2 in the entrance;
b. 1.5μg/100cm2 in bedroom 1;
c. 4.3μg/100cm2 in bedroom 2;
d. 8.4μg/100cm2 in the lounge;
e. 3.5μg/100cm2 in the bathroom;
f. 0.15μg/100cm2 in the toilet;
g. 1.79μg/100cm2 in bedroom 3;
h. 0.07μg/100cm2 in bedroom 4;
i. 17.5μg/100cm2 in the dining room;
j. 3.0μg/100cm2 in the kitchen;
k. 1.75μg/100cm2 in the laundry; and
l. 9.8μg/100cm2 in the entrance to the basement.
11 At [31]–[32].
12 At [34].
[12] A further test that was carried out on 30 April 2024 showed that the basement room tested positive for methamphetamine contamination with a result of 12.1μg/100cm2.
[13] Section 59B of the Act applies where premises are uninhabitable due to excessive levels of contamination as prescribed and regulations. The adjudicator recognised that no regulations had been made under the Act prescribing the maximum acceptable level for contamination13 but nevertheless applied s 59B. The adjudicator went on to find that the testing revealed methamphetamine contamination in the dining room at a level of 17.5μg/100cm2 — this was above the level found to be unlikely to give rise to any adverse effects in a report authored by Professor Sir Peter Gluckman (the Gluckman report).14 The report stated that exposure to methamphetamine levels below 15μg/100cm2 would be unlikely to give rise to any adverse effects.15 The adjudicator found that the property was as a result uninhabitable and so the tenancy should be terminated saying:
43. … I am satisfied that the premise is uninhabitable by the standard set out in the Gluckman Report and that it would be unreasonable for me to leave the tenant residing in a premise contaminated with methamphetamine levels that are above the 15μg/100cm2. At this level of contamination, the landlord is required to decontaminate the premise, and this requires the tenancy to be terminated so extensive decontamination processes can be carried out. Such extensive remedial work cannot be carried out while the premise is occupied.
[14] The adjudicator’s reasoning for using only the recommendations in the Gluckman report as the standard for the maximum inhabitable level of contamination under s 59B was based on a 2017 District Court decision.16 That decision held that remediation of methamphetamine contamination should be carried out in accordance with the prevailing guidelines at the time.17 The adjudicator treated the Gluckman report as prescribing the guideline.
13 At [36].
14 Peter Gluckman “Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards” May 2018.
15 And that this level incorporates a “30-fold safety buffer on a conservative estimate of risk”: at 29.
16 Diamond Real Estate Limited v Allan [2017] NZDC 833. See also Tribunal decision, above n 1, at [40] and [41]; citing Full Circle Real Estate Limited v Piper [2019] NZDC 4947, and Acme Realty Limited v Hogg [2021] NZDC 3231.
17 Tribunal decision, above n 1, at [39].
[15] The adjudicator found that the evidence did not show Ms Nisbet was responsible for the methamphetamine contamination and so she was entitled to a rent abatement under s 59B.18
[16] An order for nonpublication of the landlord’s name was made but the adjudicator made no such order in favour of Ms Nisbet as she had not applied for one.19
The District Court Appeal
[17]Ms Nisbet appealed to the District Court on the basis that:20
(a)there is no evidence that the appellant caused alleged damage or alleged contamination of the premises which is not contaminated in any event;
(b)there is no evidence that the appellant consumed illicit drugs at the premises;
(c)any alleged breach is not sufficiently serious or causative of the appellant to justify termination of the tenancy; and
(d)the drug results are inaccurate and accordingly the premises is not uninhabitable.
[18] Ms Nisbet was legally represented at the appeal in the District Court. The Judge upheld the Tribunal’s decision. The Judge agreed that it was appropriate to apply the Gluckman report’s recommendations to determine whether the property was uninhabitable due to contamination, despite recognising there are currently no regulations prescribing a maximum contamination level.21 He agreed that because the testing revealed contamination over 15μg/100cm2, the property was uninhabitable under s 59B and so the tenancy should be terminated.22 He declined to entertain arguments casting doubt on the rigour of the test results on the basis there was no expert evidence called by Ms Nisbet.
18 At [49] and [51]. At [49], the adjudicator referred to “section 59A” of the Residential Tenancies Act but it is apparent they were meaning to refer to s 59B.
19 At [57].
20 DC decision, above n 2, at [7].
21 At [26].
22 At [36].
[19] The Judge rejected a submission that there was any discretion for the Tribunal or the Court to consider alternatives to termination under s 59B when it was not the case that only a remote and inconsequential part of the premises was contaminated.
[20] The Judge also admitted evidence from the respondent landlord as to the results of further contamination tests taken on 13 December 2024 and 14 January 2025. The tests had been done following a direction issued by the District Court. The respondent argued that the tests demonstrated a dramatic increase in methamphetamine contamination at the property and showed that the property has been used for methamphetamine manufacture. The 13 December 2024 samples were presented in the certificate of analysis dated 18 December 2024 and also contained in the report of the 14 January 2025. The results included one for the living room indicating 139μg/100cm2, and three results for the secret room installed by Ms Nisbet of 65, 69 and 85μg/100cm2. The Judge made no comment about the extent to which Ms Nisbet may be at fault for the contamination.
[21] The report of 25 January 2025 was redacted, including the author’s name. However, the Judge admitted the reports on the basis that notice under s 130 of the Evidence Act 2006 had been given to admit the material, and there had been no objection. He determined it was therefore admissible as to the “the nature, origin, and contents of the document are as shown on its face” under s 130 of the Evidence Act.23 The Judge said that notice had been given at the pretrial conference at which the Judge had directed the reports be obtained, as recorded in a minute of 10 December 2024. The samples however had been taken after that date and the evidence by way of the certificate of analysis was dated 18 December 2025. The full report on the testing was dated 14 January 2024.
[22] The Judge also recorded that the respondent had declined to entertain a solution where Ms Nisbet could vacate the property for a few days while decontamination was carried out, to then move back in.24
23 At [10].
24 At [5] and [6].
Grounds of appeal
[23]The appellant appeals on grounds that:
(a)The Judge incorrectly applied s 59B of the Act by refusing to exercise discretion to decline terminating the tenancy. In particular, this is said to have been contrary to s 85.
(b)The Judge erred by failing to consider alternatives to termination under s 59B.
(c)The Judge incorrectly admitted and relied on expert reports that had been redacted, without expert testimony. This is said to have breached ss 25, 27 and 30 of the Evidence Act.
(d)The Judge incorrectly relied on the Gluckman report as determinative when it is not legally binding.
(e)The Judge failed to consider whether the respondent did, by failing to test or remediate the property prior to the tenancy commencing did not meet its obligations under s 45(1)(c) of the Act — although this argument does not appear to have been raised at first instance or before the District Court.
[24] In oral submissions Ms Nisbet focussed on the errors in the report. She noted that the date of the sampling was 13 December 2025 (not 16 December 2025 as stated in the certificate and report); the diagram of the house in the report showed the front door and the basement in the wrong place; and that a website indicated that Hills Laboratory do not calibrate for test levels over 100 μg so the testing at 139μg/100cm2 was unreliable.
[25] Ms Nisbet also noted that there was no suggestion she was involved in gangs yet the redactions to the report were said to be made for the protection of the report writer who had been threatened by gangs in relation to other reports unrelated to Ms Nisbet’s tenancy.
[26] Ms Nisbet had, at the appeal teleconference, expressed a wish to contest the test results relied on by the District Court by adducing evidence from her own expert. However, she has not filed any such additional evidence due to the substantial cost of obtaining the reports. Ms Nisbet said she had to approach providers outside Wellington due to the landlord having relationships with local providers.
Approach on Appeal
[27] Any party to a general proceeding before the Tenancy Tribunal may appeal to the District Court.25 Such an appeal will proceed by way of rehearing in the ordinary way.
[28] Appeals to the High Court, however, are limited to questions of law.26 This is not a general appeal, and it is not this Court's role to rehear the case or to undertake an “on the merits” consideration of whether the District Court's decision or factual findings were correct.27 The more limited role of the Court when considering an appeal on a question of law was explained by the Supreme Court in Bryson v Three Foot Six Ltd:28
[24] Appealable questions of law may nevertheless arise from the reasoning of the Court on the way to its ultimate conclusion. If the Court were, for example, to misinterpret … the section, … that would certainly be an error of law which could be corrected on appeal, …
[25] An appeal cannot however be said to be on a question of law where the fact-finding court has merely applied law which it has correctly understood to the facts of an individual case. It is for the court to weigh the relevant facts in the light of the applicable law. Provided that the court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding court, unless it is clearly insupportable.
[26] An ultimate conclusion of a fact-finding body can sometimes be so insupportable — so clearly untenable — as to amount to an error of law; proper application of the law requires a different answer. That will be the position only in the rare case in which there has been, in the well-known words of Lord Radcliffe in Edwards v Bairstow, a state of affairs ‘in which there is no evidence to support the determination’ or ‘one in which the evidence is inconsistent with and contradictory of the determination’ or ‘one in which the
25 Residential Tenancies Act, s 117
26 Section 119.
27 As is the Court's role on a general appeal—see Austin Nichols & Co Inc v Stitchting Lodestar
[2007] NZSC 103, [2008] 2 NZLR 141.
28 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.
true and only reasonable conclusion contradicts the determination’.
…(footnotes omitted)
[29] This Court must decide whether the decision under appeal reveals a misinterpretation or misapplication of the statutory powers in the Act and, if not, whether what was decided is so misconceived that it is an unlawful decision.29
The Residential Tenancies Act
[30]The purpose of the Act is evidenced by its long title:30
An Act to reform and restate the law relating to residential tenancies, to define the rights and obligations of landlords and tenants of residential properties, to establish a tribunal to determine expeditiously disputes arising between such landlords and tenants, …
[31] The Act was introduced to protect both landlords and tenants by introducing “firm, fair and readily enforceable rules”.31
[32] Section 56 of the Act allows tenants or landlords to apply to the Tribunal for an order terminating the tenancy. The Tribunal will only make such an order if:
(a)the other party has breached the tenancy agreement or the Act; and
(b)if a breach is capable of remedy, the applicant gave the other party a 14-day notice specifying the breach and giving them an opportunity to remedy it but the other party did not remedy the breach; and
(c)it would be inequitable to refuse to terminate the tenancy.
[33] Where the whole of a premises is “destroyed, or are so seriously damaged as to be uninhabitable” for some reason other than breach of the tenancy agreement,
29 Angelo v Lehr (as Trustees of The Biodiversity Sonnos Trust) [2022] NZHC 3033 at [71].
30 As reinforced by the manner in which the Tribunal’s jurisdiction is to be exercised under the Act; see Residential Tenancies Act, s 85(1): “the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants …”.
31 Want v Parbhu [2019] NZCA 674 at [10], citing the observations of the Hon Phil Goff, the Minister of Housing at the time, made when the Bill was introduced — (19 September 1985) 466 NZPD 6896. Also see Ziki Investments (Properties) Ltd v McDonald [2008] 3 NZLR 417, [2008] RTHNZ 14 at [53].
s 59(1) applies. The rent abates “accordingly” and either party may give the other a notice terminating the tenancy. Where the premises is “partially destroyed, or part of the premises is so seriously damaged as to be uninhabitable”,32 s 59(4) applies so the rent should abate “accordingly” but either party may not simply give notice of termination. To terminate they must apply to the Tribunal who may make an order of termination if satisfied that it would be unreasonable to require either the landlord to reinstate the property or the tenant to continue with the tenancy at a reduced rent.
[34]Section 59 explicitly does not apply in relation to (bold emphasis added):33
damage that is contamination if regulations prescribe a relevant method of testing for, and a relevant maximum inhabitable level of, that contaminant (but see section 59B).
[35]Relevant definitions, found in s 2(1) of the Act, are as follows:
contaminant means any of the following:
methamphetamine:
any substance prescribed, or within a class of substance prescribed, as being a contaminant for the purposes of this Act
contaminated, in relation to premises, means that a contaminant is present in any part of the premises at a level above any relevant prescribed maximum acceptable level
…
prescribed means prescribed by this Act or by regulations made under this Act
[36] The Tenancy Tribunal appears to have found and District Court has found for the respondent under s 59B of the Act. However, s 59B applies only if certain pre-conditions are met, as set out in subs(1):
59B Termination where regulations prescribe testing methods and maximum inhabitable level of contaminant
(1)This section applies if testing in accordance with a relevant prescribed method establishes contamination by a contaminant, in any part of the premises, at a level that is above a relevant maximum inhabitable level prescribed for that contaminant.
32 Emphasis added.
33 Residential Tenancies Act, s 59(5) [bold emphasis added].
(2)If the contamination has occurred as a result of a breach of the tenancy agreement (whether for a fixed-term tenancy or a periodic tenancy),—
(a) the whole of the premises is treated as uninhabitable; and
(b) if the tenant is not in breach, the rent abates; and
(c) the party who is not in breach may give notice to the other party terminating the tenancy.
(3)If the contamination has occurred otherwise than as a result of a breach of the tenancy agreement (whether for a fixed-term tenancy or a periodic tenancy), then, unless subsection (4) applies,—
(a) the whole of the premises is treated as uninhabitable; and
(b) the rent abates; and
(c) either party may give notice to the other terminating the tenancy.
…
[37] If s 59B is engaged, and there was no breach of the tenancy agreement by either party, if the only part of the premises contaminated “above the maximum inhabitable level is a remote and inconsequential part”, then under subs (4) applies. In that case, there is no automatic right belonging to either party to give notice terminating the tenancy.34 Instead, the rent will abate and either party may apply to the Tribunal for a termination order.35 The Tribunal may only make a termination order if it is satisfied that it would be unreasonable to require either the landlord to reinstate the property or the tenant to continue with the tenancy at a reduced rent.36
[38] The Governor-General may make regulations for prescribing maximum inhabitable levels of contaminants for premises for the purpose of s 59B and for prescribing methods for carrying out tests for the presence of contaminants under s 138C(3)(b) and (d) of the Act.
[39] If as a result of a tenant’s breach of the tenancy agreement, the premises are “destroyed or are so seriously damaged as to be uninhabitable” then the landlord may give seven days’ notice terminating the tenancy under s 59A. If the same damage
34 Section 59B(4); the term “remote and inconsequential” is defined in subs (8).
35 Section 59B(4).
36 Section 59B(5).
occurs but it is a result of a breach by the landlord, the rent abates and the tenant may give two days’ notice of termination. Section 59A does not apply:37
in relation to damage that is contamination by a contaminant if regulations prescribe a relevant method of testing for, and a relevant maximum inhabitable level of, that contaminant (but see section 59B).
Analysis
[40] The short point is that the Tribunal and District Court Judge were in error in applying s 59B of the Act as a basis for an order that the tenancy is terminated and so erred in law. That is so for two reasons:
(a)First, s 59B is not engaged. It only applies if “testing in accordance with a relevant prescribed method establishes contamination … at a level that is above a relevant maximum inhabitable level prescribed for that contaminant”.38 As both the adjudicator and District Court Judge recognised, there are no regulations currently in force that prescribe either a method of contamination testing or a maximum inhabitable level for methamphetamine. There has accordingly been no testing under a prescribed method nor is there any contamination levels prescribed against which to determine that the premises are uninhabitable.39 In the absence of regulations, it is not for the Tribunal or the Court to apply another source of guidance. Other cases which have referred to the recommendations in the Gluckman report and other similar sources referred to different sections of the Act.40
37 Section 59A(6).
38 Section 59B(1).
39 This view was also expressed in Te Tūāpapa Kura Kāinga | The Ministry of Housing and Urban Development “Regulation of Methamphetamine Contamination in Rental Housing — Regulatory Options: A Discussion Paper”, November 2022 [Ministry of Housing and Urban Development Discussion Paper] at 14: “If a maximum inhabitable level is not set, section 59B of the Act will not be able to be used to terminate a tenancy on the basis of high levels of methamphetamine residue”.
40 The District Court cases cited by the adjudicator in the Tribunal decision, above n 1, (Diamond Real Estate Limited v Allan, above n 16; Full Circle Real Estate Limited v Piper, above n 16; and Acme Realty Limited v Hogg, above n 16) did not relate to s 59B. Instead, they were appeals from applications by a landlord for reimbursement of the cost of methamphetamine testing and/or decontamination after the tenant had vacated the premises. In those cases, the landlords argued that the tenant, in causing methamphetamine contamination, had breached their obligations under s 40 of the Act not to damage the premises or leave them in a reasonably clean and tidy condition.
(b)Secondly, even if the regulations were in force, the Tribunal does not have power under s 59B(4) to make a termination order, unless only a “remote and inconsequential part of the premises” is contaminated above the maximum inhabitable level. This was not the situation as the Tribunal or District Court understood it. Otherwise, if s 59B is engaged, there is simply a right of termination by notice which the Tribunal may declare consistent or inconsistent with the Act.41
[41] In view of the error in interpretation by both the Tribunal and the District Court the respondent succeeds on her fourth ground appeal in that the Tribunal and the District Court erred in relying on the recommendations in the Gluckman report rather than regulations made under the Act. The District Court Judge erred in his application of s 59B of the Residential Tenancies Act 1986 by finding that the Court could determine the “maximum inhabitable level” beyond which contamination would make a property uninhabitable.
[42] Mr Tetzlaff for the landlord submitted that it was possible to read the Tribunal decision as also concluding that the illegal electrical work undertaken by the tenant’s son justified the termination as the premises were rendered uninhabitable by the work. However, while the adjudicator in the Tribunal did say that it agreed with the landlord “that the premise is uninhabitable” due to the electrical work but only when “combined with the high methamphetamine levels”.42 This was no finding that the electrical work alone made the premises uninhabitable. In addition, the adjudicator did not explicitly consider whether the electrical damage amounted to a breach of the tenancy agreement (a prerequisite of s 59A’s application). The adjudicator also found that the landlord had given implicit consent for Ms Nisbet’s modifications to the property.
[43] The decision ultimately rested on the methamphetamine contamination and the application of s 59B following the application of the Gluckman Report
41 Noting that the Tribunal does not appear to have a general power to terminate: see ss 50(1)(f), 77 and 78 of the Residential Tenancies Act. In these situations, the Tribunal seems to simply have a power to determine whether or not any termination notice was authorised by the Act: see s 77(2)(f).
42 Tribunal decision, above n 1, at [30].
recommendations instead of regulations.43 This was also the basis upon which the appeal was argued and the findings on appeal in the District Court relate to s 59B.
[44] In a case where premises are uninhabitable due to contamination it may well be that ss 59 or 59A apply.44 Either section requires proof that the premises are in fact uninhabitable due to contamination.
[45] The Gluckman report suggests that exposure to methamphetamine levels below 15μg/100cm2 would be unlikely to give rise to any adverse health effects. It does not follow from the report that methamphetamine levels above 15μg/100cm2 are “uninhabitable”. However, Te Tūāpapa Kura Kāinga | The Ministry of Housing and Urban Development has made proposals suggesting that the “maximum acceptable level of contamination” for methamphetamine (the level above which a premises will be considered “contaminated” under the Act)45 should be 15μg/100cm2 and the “maximum inhabitable level” for methamphetamine (the level above which s 59B will be engaged) should be 30μg/100cm2.46 It acknowledges that commissioned advice from the Institute of Environmental Science and Research found there was insufficient evidence to be able to define a maximum inhabitable level for methamphetamine as “no evidence is available of severe health effects associated with third-hand methamphetamine exposure”.47 The Ministry concludes there is a “lack of scientific evidence” on what an uninhabitable level of methamphetamine was.48
[46]The term “uninhabitable” is not defined in the Act. As Judge Kellar said in
Watkin v Brazier Property Investments Ltd:49
The word “uninhabitable” is not defined in the Oxford English Dictionary, however “habitable” is defined “suitable for habitation or as a human abode; fit to live in” and “inhabitable” as “capable of being inhabited, occupied or tenanted”. Accordingly, “uninhabitable” must denote a state which lacks those qualities.
43 Tribunal decision above n 1, at [33]–[43].
44 Section 59 applies if the damage is otherwise than as a result of a breach of the tenancy agreement, while s 59A applies if the damage is a result of a breach.
45 See definition of “contaminant” in s 2 of the Residential Tenancies Act.
46 Ministry of Housing and Urban Development Discussion Paper, above n 39, at [1.1] and [1.2].
47 At 14.
48 At 16.
49 Watkin v Brazier Property Investments Ltd DC Christchurch CIV-2011-009-1006, 28 November 2011 at [10].
[47] In assessing whether or not premises are uninhabitable, in the absence of regulations concerning the levels of contamination which are deemed to make the premises uninhabitable, the proper approach is to undertake a fact specific inquiry under either ss 59 or 59A in accordance with the District Court authorities. Whether or not a premises is uninhabitable will depend on the nature of the damage, the safety risks presented by it, the nature of the property itself and its occupants.50 Also relevant to the assessment is the extent to which the relevant damage interferes with the functionality and use of the property. In addition, it may also be appropriate to take into account the kind of occupant of the property. For instance, elderly, disabled or child tenants may be more affected by contamination than others might be.
[48] Consideration should also be given as to whether only part of the premises is only part of a property that is uninhabitable under s 59(4). For example, even a dining room may not prevent other parts of the premises being safely inhabited if the tenants were able to avoid using that room without that undermining their use of the property as envisaged in the tenancy agreement.
Other grounds of appeal
[49] In view of my conclusion that the appeal succeeds, I will not discuss in depth the other grounds. The first and second grounds fail, for the reasons set out above. The first ground relates to whether the Judge incorrectly applied s 59B by refusing to exercise his discretion to decline terminating the tenancy, contrary to s 85 of the Act. Section 85 (which Ms Nisbet relies on) allows the Tribunal to exercise its jurisdiction in a manner most likely to ensure the “fair and expeditious resolution of disputes” and “determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities”. This does not mean the Tribunal can give itself jurisdiction where there is none. The Tribunal does not have jurisdiction under s 59B to consider alternatives to termination.
50 Watkin v Brazier Property Investments Ltd, above n 49; First Avenue Property Ltd v Malik DC Christchurch CIV-2011-009-1530, 23 November 2011; Mauger v Kennard Real Estate Ltd DC Christchurch CIV-2011-009-1428, 22 November 2011.
[50] The second ground relates to whether the Judge erred by failing to consider alternatives to termination under s 59B. This has been overtaken by my finding that the Tribunal and the District Court were in error in applying s 59B. It is therefore not necessary to consider this ground any further
[51] The fifth ground alleges that the respondent should have tested or remediated the premises prior to the tenancy commencing, and its failure to do so was a breach of its obligations under s 45(1)(c) of the Act. Again, in view of the findings that s 59B did not apply, it is not necessary to consider this ground.
[52] The third ground relates to whether the Judge incorrectly admitted and relied on expert reports that had been redacted, in breach of ss 25, 27 and 30 of the Evidence Act. Sections 27 and 30 apply to defendant’s statements and improperly obtained evidence so are of little relevance here. Section 25 relates to expert evidence. Such evidence is only admissible if it is likely to be substantially helpful.
[53] As the respondent points out, s 97(4) of the Act allows the Tribunal to accept as evidence any document that in its opinion “may assist it to deal effectively with the matters before it”, whether or not the same would be admissible in a court of law. The Tribunal was therefore entitled to accept the reports provided to it as evidence. The District Court also had before it the Tribunal file including the reports that had been adduced before the Tribunal. However the further reports directed by the District Court were further evidence on appeal. Further evidence to be admissible should be fresh, cogent and credible. In view of the fact that the report author’s name was redacted the District Court was not in a position to consider the credibility of the report.
[54] In addition, the notice to admit evidence if it were given at the District Court appeal management conference could not have complied with. Section 130 deals with offering documents in evidence without calling a witness to produce them. Section 130 (1) requires the relevant document sought to be admitted to be attached to the notice. This is a matter of fairness to the person affected by the evidence sought to be admitted. The certificate and the reports were not in existence on 10 December 2024,
the date of the conference and the date on which the Judge said that the notice seeking their admission was given.
[55] However, Ms Nisbet was represented in the District Court and it appears from the judgment that her counsel consented to the admission of the further certificate and report which had been directed by that Court.51
[56] In those circumstances the certificate and the report may have been admitted by consent. However the Judge was in error by relying on the failure by Ms Nisbet to object to a notice under s 130 to admit the document without calling the author.
[57] A number of other matters were raised in the course of argument which fell outside the appeal grounds filed. Leave would technically be required to argue these. However, Ms Nisbet was unrepresented and not aware of the procedural requirements. I allowed her to argue them and will deal with them as if an application for leave under r 20.9 of the High Court Rules 2016 had been made.52 Mr Tetzlaff was aware of and able to respond the oral arguments. First, Ms Nisbet raised the matter of whether the handling of the methamphetamine contamination was consistent with the approach of the landlord (Kāinga Ora) who had transferred Ms Nisbet’s lease to the present landlord. I take this to be an argument based on an implied term that this approach would continue when the tenancy was transferred. However, it appears this was not argued in the Tribunal and while Ms Nisbet says it was argued I do not have the transcript from either the Tribunal or the appeal hearing. Mr Tetzlaff points out that there was no evidence on the point in the Tribunal nor in the District Court. Prejudice would therefore accrue to the respondent given the matter was not the subject of findings in the Tribunal or the District Court. It is not in the interests of justice to grant leave to pursue this appeal ground.
[58] Nor could the appeal succeed on the basis of the inaccuracies in the report emphasised in Ms Nisbet’s oral submissions. Mr Tetzlaff pointed out that the
51 DC decision, above n 2, at [10].
52 High Court Rules 2016, r 20.9(4): “An appellant may amend a notice of appeal at any time with the leave of a Judge”.
inaccuracies were not material and did not affect the results. There was no evidence contradicting the results of the testing. Leave is not granted to pursue this ground.
[59] Ms Nisbet had failed to file the bundle of documents on appeal as directed at the case management conference on 23 June 2025.53 Mr Tetzlaff helpfully filed a paginated bundle of authorities including a minute from the District Court relating to the further evidence. He also handed up a copy of the tenancy agreement. There were copies of the Tribunal decision and the District Court decision on the High Court file together with the redacted January 2025 report. Ms Nisbet handed up her copy of the certificated of analysis dated 18 December. Both parties sought that the appeal proceed. Accordingly the appeal was heard on the basis that I waived the requirements for the filing of the bundle and proceeded with the appeal on the basis of the documents that were available on the Court file together with those which were handed out by the parties and placed on the Court file.
Result
[60] The appeal is allowed. The Tenancy Tribunal and the District Court erred in the application of s 59B of the Residential Tenancies Act 1986 by finding that in the absence of the promulgation of regulations under that section, the Tribunal or Court were able to prescribe the “maximum inhabitable level” beyond which contamination would make a property uninhabitable.
[61]The Tribunal and the District Court decisions are set aside.
Grice J
Solicitors:
Smith & Partners, Auckland for Respondent
53 Nisbet v [Landlord] HC Wellington CIV-2025-485-333, 23 June 2025 (Minute of La Hood J).
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