What was Tenancy Tribunal case 4750709 about?

The tribunal order states: The name of the applicants and identifying details is suppressed.

How much money was awarded in case 4750709?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4750709?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4750709?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9775696-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4750709 about?

The tribunal order states: The name of the applicants and identifying details is suppressed.

How much money was awarded in case 4750709?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4750709?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4750709?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9775696-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4750709 — 14-day notice

Order

The name of the applicants and identifying details is suppressed.
The tenancy of Luke O'Sullivan at [Tenancy address suppressed] is terminated, and possession is granted to [The landlord/s], at 5pm 20 December 2023.
Luke O'Sullivan must pay the filing fee of $20.44 to the landlord.

Reasons

Both parties attended the hearing. Given the complexity of the matter, the Tribunal gave approval for the applicants to be represented by [The landlord/s representative], a solicitor.
The applicants own a farm at [redacted].
The applicants interviewed the respondent for a position working on their farm as a contract milker in around May 2023.
According to the applicants, they produced a written contract milking agreement when they met with the respondent at that time. Although he took the agreement away with him they say he never returned it for signing.
The agreement provided for free accommodation on the farm as part of the role. The respondent recalled the free accommodation as part of the role being discussed at the meeting when he was interviewed.
The agreement contains a clause (clause 19.5) which expressly records that the tenancy to be provided was a service tenancy under the Residential Tenancies Act 1986 (the RTA). The labels that parties use to describe their relationship is not of course determinative of the issue, however, I note that the respondent does not disagree that this was a service tenancy as alleged by the applicants.
The commercial reason for free accommodation being provided was because the role required early starts and late finishes and the farm itself is remote, meaning that accommodation on site is a key incentive to anyone accepting the role.
The respondent recalled being interviewed by the applicants but recalls no written agreement being produced and was adamant that he did not sign or agree to the terms of any written agreement.
Nevertheless, he moved into the premises and commenced undertaking the role of contract milker.
Subsequently, the applicants alleged that the parties generally observed the terms of the agreement, subject to the alleged breaches referred to below.
Under the agreement, the applicants allege that the respondent was engaged to manage the farm and carry out the milking of the farm’s herd. They allege that the respondent was required, amongst other things, to: (a)Provide the necessary labour to efficiently and effectively perform your obligations under the agreement (b)Carry out any reasonable instruction given by the applicants. (c)Keep a record of all accidents and near misses and report any accidents to the applicants within 48 hours. The respondent was also to notify the applicants promptly after an accident occurs and otherwise comply with all Health and Safety laws and the Farm’s Health and Safety policy. (d)Properly care for the herd in accordance with the Dairy Cattle Code of Welfare and ensure there is qualified supervision at each milking;
The applicants allege that the failure to comply with the obligations listed above at (c) and (d) constituted material breaches of the agreement (see clauses 14.40 and 8.10 of the Agreement).
The particulars of these failures related broadly to alleged breaches of section
5 of the Code of Animal Welfare for dairy cattle by failing to milk the farm’s cows regularly, a breach of the Health and Safety at Work Act 2015 by not notifying an alleged quad bike accident to the applicants, failing to remove dead animals from paddocks and drains, and alleged dishonesty with respect to full disclosure of an incident where the respondent allegedly left the chiller off and a lot of milk went bad in the vat.
The respondent denies all of these breaches. He says that he has never left any dead animals at the property. He blamed a relief milker for leaving the chiller off. He is unaware of the accident that the applicants rely on and he otherwise denies that he has been in breach of the agreement.
On 10 November 2023, a notice of termination of the agreement and the alleged service tenancy was hand-delivered by the applicant’s lawyer to the respondent.
The respondent admits receiving a copy of it from one of the applicants, personally.
He is currently not undertaking any contract milking on the farm. The applicants are now doing the milking themselves, which has presented difficulties, given their age. The applicants have located a replacement contract milker but they need to provide accommodation as part of that agreement. The matter has become urgent. They want to get access to the premises occupied by the respondent urgently in order to enter a fresh contract milking agreement with his replacement. They say futher that when the termination notice was delivered to the respondent, he said “you won’t get me out of here”. They believe it will be very hard to enforce any order, even if they were to reach agreement on an agreed date.
The respondent says he has engaged a “no win no fee” advocate and that a personal grievance will shortly be raised. He has otherwise taken no steps to instigate the dispute resolution procedure set down under the agreement nor commenced any litigation in any civil courts.
The respondent accepted during the hearing that he “had to go”, but was under the misunderstanding that he was entitled to 90 days notice. This is the reason he has refused to leave. The relevant law
Under section 65 of the RTA, the Tribunal must make an order granting possession of the premises to the person entitled to possession of any residential premises, where the Tribunal: is satisfied that any other person is in possession of the premises is a squatter, trespasser, or otherwise than pursuant to any right of occupation granted to that person by any person having lawful authority to grant that right to that other person.
For the Tribunal to make an order under s 65 there are three questions to be considered: •Are the premises residential premises? • Is the party making the application for possession entitled to receive possession? • Is the person in possession of the premises in occupation as a squatter, trespasser or pursuant to some right of occupation? 1
If these three elements are established then the Tribunal must make a possession order.
The premises are clearly residential, so no issue arises there. The issue is however whether or not the applicants are entitled to possession or whether the respondent has a right of occupation.
Section 53 of the Residential Tenancies Act 1986 (the RTA) deals with service tenancies. It states: (1) The landlord or the tenant may terminate a service tenancy by giving at least 14 days’ notice if the contract of service or, as the case requires, the contract for services has been terminated or either party has given notice to terminate that contract (subject to subsections (2) to (7)). ........ (3) No notice under this section shall have effect to terminate a service tenancy on a date preceding the date on which the termination of the contract of service or, as the case requires, contract for services or the transfer of the employee takes effect. ........ (7) In any proceedings before the Tribunal in which the validity of a notice purporting to have been given under this section is in issue, the following provisions shall apply: (a) whether the contract of service or, as the case requires, contract for services was or was not terminated shall be a question of fact to be determined by the Tribunal, but the Tribunal shall not be concerned with the lawfulness or otherwise of that termination: (b) it shall be for the landlord to establish to the satisfaction of the Tribunal the matters referred to in paragraphs (a) and (b) of subsection (2), and in subsection (5): 1 See the District Court and High Court’s decisions of Sergeant v Nigro [2019] NZDC 1060 at [25] and [26]; and Sergeant v Nigro [2019] NZHC 328 at [83]-[94].
I note that pursuant to s 53, it is not for the Tribunal to inquire into the validity or lawfulness of any termination, once I find that the termination has taken place.
The relevant issues therefore are: (a) was the relevant tenancy a service tenancy, as that phrase is defined in the

RTA?

(b) if so, was a 14 day notice of termination of the service tenancy given by the applicants to the respondent? (c) had a termination notice of the agreement been given at the date the termination of the tenancy was given?

Was the relevant tenancy a service tenancy, as that phrase is defined in the RTA?

Applying the principles and law correctly summarised by Adjudicator Prowse in Chief Executive v Samra Brothers Ltd [2021] NZTT Thames 4248031, I am satisfied that this tenancy was a service tenancy. I find that the respondent has at all material times resided at the premises which were provided as part of the agreement, free of charge. He has had exclusive possession of the premises. The respondent was not a service occupant, being an occupancy that arises as an incident of employment or where the residence is on a casual basis. Was a 14 day notice of termination of the service tenancy given by the applicants to the respondent?
I find that the requisite 14 day notice of the service tenancy was given by the applicants to the respondent on 10 November 2023. The respondent accepts receiving a copy of it direct from one of the applicants.
The respondent adamantly challenges the grounds of the termination but as noted above that is not a matter over which I have any jurisdiction. That will be a matter for some other forum to determine. Was a termination notice of the agreement been given at the date the termination of the service tenancy was given.
The notice under the agreement and the service tenancy were given in the one letter. Termination of the tenancy is given at the end of the letter.
I find that at the time the termination of the tenancy was given termination of the agreement had therefore also been given.
I find that the applicants are entitled to possession and that the respondent has no right of occupation.
It follows that there will be an order for possession of the premises as ordered above.
Because [The landlord/s] has succeeded with the claim I have reimbursed the filing fee.
The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the applicants have applied for name suppression, and because they have been wholly successful in the hearing, name suppression is ordered.

Tenancy Tribunal case 4750709 — 14-day notice

At a glance

Tenancy Tribunal case 4750709 — 14-day notice

At a glance

Claims & awards

Order

Reasons

RTA?

Was the relevant tenancy a service tenancy, as that phrase is defined in the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

RTA?

Was the relevant tenancy a service tenancy, as that phrase is defined in the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions