What was Tenancy Tribunal case 5159832 about?

The tribunal order states: By way of declaration: the subject tenancies come within the jurisdiction of the

How much money was awarded in case 5159832?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5159832?

The dispute type was not classified.

Where can I read the official tribunal order for case 5159832?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12011081-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5159832 about?

The tribunal order states: By way of declaration: the subject tenancies come within the jurisdiction of the

How much money was awarded in case 5159832?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5159832?

The dispute type was not classified.

Where can I read the official tribunal order for case 5159832?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12011081-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5159832 — Tenancy dispute

Order

By way of declaration: the subject tenancies come within the jurisdiction of the Residential Tenancies Act 1986 and thereby the Tenancy Tribunal.
The claims are adjourned to a case conference for scheduling directions to progress to hearing.

Reasons

The Applicant’s claims are filed pursuant to section 124(1)(a) of the Residential Tenancies Act 1986 (the Act) in place of 16 tenants 1 who until recently resided at [The premises].2 Ms Nicholas represents the Applicant.
The Respondent is the company that holds legal ownership of [The premises]. [The Respondent’s director], the sole director of the Respondent company attended the hearing with her counsel, Mr McDougall and Ms Mossman-Young.
The Respondent challenges the Tribunal’s jurisdiction to determine the Applicant’s claims on the ground that [The premises] and the relevant tenancies are exempt from the Act by virtue of section 5(1)(y)(i)(B) of the Act. 1 14 tenancies 2 Being the subject premise, [Tenancy address suppressed]
The background is that [The Respondent’s director] purchased [The premises] in 2019 at a time when [City] was dealing with major issues of homelessness. In response, the [Council] introduced an initiative to address homelessness by using tourist accommodation as emergency housing.
[The premises] and other properties [The Respondent’s director] owned were some of the accommodations the Council recognised as able to provide this emergency housing. The Emergency Housing Special Needs Grant (EH SNG) was available for qualifying people and paid directly by the Ministry of Social Development (MSD) to the provider, in this case the Respondent. The EH SNG was provided for up to seven nights before review. The recipients were additionally supported to find long term accommodation. 3 MSD and [Community housing service] 4 placed the occupants.
In 2021/2 the emergency housing regime was restructured by the Government and only select accommodation providers were contracted by MSD or the Ministry of Housing and Urban Development (MHUD) to provide emergency accommodation. These providers were named ‘Contracted Emergency Housing’ (CEH) and were provided with increased support.
[The premises] was not classified as a CEH nor was it any longer deemed eligible to receive the EH SNG. All of the subject tenants barring one 5 came to [The premises] during and after 2023.
The Respondent submits that the subject tenancies are exempt from the jurisdiction of the Act because the premise, although it lost its official classification, continued to be utilised as emergency or transitional accommodation 6 during the tenancies. Further, the tenancies were funded wholly or partly by 7 payment made by a government department for the provision of emergency or transitional accommodation because the tenants were in desperate need of housing. 8
Accordingly, the initial questions for the Tribunal are: a. Were the subject tenancies residential tenancies? b. Was the premise used to provide emergency or transitional accommodation? c. Was the provision of the accommodation funded wholly or partly by any other payment made by a government department for the provision of emergency or transitional accommodation to people in need of housing? 3 OIA letter from MSD 23 September 2019 4 [Redacted] 5 Who resided in [The premises] between September 2019 and March 2025 6 Section 5(y) of the Act 7 Section 5(y)(i) of the Act 8 Section 5(y)(i)(B) of the Act
For clarity, section 10 of the Act states that the onus of proving the tenancies should be excluded, i.e. the exemption applies, lies with the Respondent. Respondent’s case
The Respondent’s position is that these are excluded tenancies under section 5(1)(y)(i)(B) of the Act for the following summarised reasons: a. The premise was continuously used to provide emergency or transitional accommodation from 2019 until 2025 when all tenants vacated. b. The accommodation was emergency/transitional because all tenants would alternatively face homelessness; and c. Payment for the accommodation for all tenants was made by MSD.
Therefore, although it is accepted the subject tenancies were residential tenancies, Mr McDougall submits they should be excluded from the jurisdiction of the Act.
Mr McDougall notes the following particularities of these tenancies which he says are inherent characteristics of properties that fall within the exemption: a. All occupants are funded by government departments, primarily MSD. b. All occupants when they commenced their residency were in urgent need of housing and faced homelessness. c. No bonds were taken for any of the tenancies. d. Rental payments would only be taken in advance to account for MSD workload. e. Rooms were provided semi to fully furnished. f. Tenancy agreements were not used. g. Rent included amenities. h. Many occupants came from difficult situations and were not able to find homes elsewhere. i. The length of stay varied but was solely determined by the occupant’s needs, had no minimum time requirement and was intended to be transitional. j. No notice period was required from the tenants. k. The only other alternative for many of the occupants was homelessness. l. Guests were taken in on short notice.
[The Respondent’s director] gave affidavit evidence to say that for the duration of her ownership, the premise had been used as emergency housing. Although not directly contracted with MHUD or MSD to provide emergency housing from 2022, the premise continued she says, to be used to provide the same nature of housing that it had since 2019.
Weight must be placed Mr McDougall says, on the fact that MSD continually referred people to [The premises] and paid their rent in the same way, when it had CEH status, and afterwards. Therefore, MSD used [The premises] for the same services when they were registered as a CEH and after: emergency housing.
Continuously the accommodation was used to provide people with housing who had no alternative and came in urgent circumstances, accordingly it was emergency housing Mr McDougall submits. Because MSD was funding accommodation where there was no alternative, the rent payments made by MSD were for the provision of emergency housing.
[The premises], Mr McDougall submits, has carried on a valuable community service housing the homeless since 2019 which shows they were providing emergency accommodation throughout. The need for emergency housing has been consistent prior and since the 2022 reform, and [The premises] has met that need consistently.
Mr McDougall notes that difficulty has arisen because the Act does not define transitional nor emergency housing. His submission is that the intentional lack of definition means that a provider can supply emergency housing even if not directly contracted with MSD or MHUD as a CEH or otherwise.
Mr McDougall submits that the focus must be on the purpose and use of a premise as a whole, the purpose of the stay, how all the occupancies were run, the funding source (being the Government) and the lack of a landlord-tenant arrangement.
It is also the use of the funding Mr McDougall submits that is relevant, not the label attached to it by MSD. A provider will usually not be aware of the name designated to the payments of rent by MSD, that he says is for the tenant and MSD to discuss. If payments of rent are made to prevent homelessness, then the payments are for emergency housing.
Further, registration as a CEH simply cannot be a prerequisite he submits because such arrangements are covered under s5(y)(ii): the provider is a person, or class of person, prescribed by regulations.
In terms of the length of a stay, Mr McDougall submits it is non-sensical to expect a previous provider of emergency housing to evict their occupants when their length of stay exceeds that expected of traditional emergency housing. This would mean that the person would then again become homeless and in need of alternative emergency housing.
He says that the background to the amendment is relevant. In particular the Cabinet papers were intentionally not incorporated in the actual wording of the section, and it was drafted broadly to cover situations such as this one: where the provider is not a CEH but nevertheless provides emergency accommodation by virtue of the nature of the premise and the service provided; essentially to reflect reality.
Mr McDougall references the Select Committee report 9 regarding this exemption:
And the corresponding comments by the Honourable Kris Faafoi 10 :
Mr McDougall submits that the exclusion was introduced for this scenario: to ensure that accommodation could be provided without risk to people in need of emergency housing, regardless of the length of their stay. He says that the Government were intending the focus to be on the purpose of the stay, the funding source and the lack of tenant-landlord arrangement. If the Government had intended only contracted providers to be exempt, he submits they would have said so.
His submission on behalf of [The Respondent’s director] is that any use of the Act she made, such as in her 90-day notices and application to the Tribunal was undertaken with a lack of advice and understanding and therefore cannot be determinative to the classification of the use of the premise.
Finally, Mr McDougall submits that it is in the public interest to accept situations such as this come within the exception for the following reasons: 9 on the Residential Tenancies Amendment Bill 10 during the second reading of the Bill a. Allowing non-contracted providers to utilise the exemption broadens participation in the emergency housing network which is required given the high number of people in need of emergency housing. b. It recognises that MSD often relies on non-contracted providers due to the demand exceeding the supply of contracted providers. c. The ultimate purpose of the exemption is to ensure that those in need of housing are provided with it, and this would be discouraged if not accepted. d. It would be unjust to penalise a previous emergency housing supplier for continuing to supply a service to those desperate for housing. Particularly a service utilised by another government department, MSD. This he says shows “a clear failure and lack of internal transparency between these government departments; one crucifying the Company, and the other relying so heavily on the Company to keep so many people from ending up on the street”. Position of the Applicant
Ms Nicholas submits that the exclusion is specific and is so for a purpose. This situation she says cannot fit within the intended meaning of the exclusion for a variety of reasons.
All the subject tenants, barring one, commenced their stays after the CEH status had been revoked. They all had rent redirections from MSD as opposed to payments made specifically for emergency housing. Their rent was not controlled and was well above market rent 11 which takes it out of line with emergency housing providers. In particular MSD had no control over the amount of rent charged by the Respondent in contrast to CEHs.
Also relevant she notes is that there were no end dates agreed for these tenancies and they were all lengthy. The tenants contracted directly on their own with [The premises]; the arrangements were not undertaken on their behalf by MSD. There is also no evidence that MSD referred any of the subject tenants to [The premises].
She notes there is no evidence of any of these tenants having a particular need for urgent or emergency accommodation and as such no alternative. In contrast, [The Respondent’s director] referenced other housing options she herself could provide her tenants in her interview, indicating that they did have other options.
Other characteristics of these tenancies Ms Nicholas submits that are inconsistent with that of emergency housing are: 11 Within the meaning of section 2(1) of the Public and Community Housing Management Act 1992 a. Rent was required two weeks in advance which does not support a short stay nor emergency housing provisions. b. No evidence has been provided to establish that the tenants were being supported in any way to obtain permanent accommodation. c. She draws the Tribunal’s attention to an email from MSD 12 confirming that none of the tenants at the Property were funded through emergency housing. d. Occupants housed pursuant to transitional housing are subject to a code of practice and centrally administered standards which [The premises] occupants were not. e. The check in document from the Respondent refers to the payments due as ‘rent’ and refers to the occupation as a ‘residency’. f. [The Respondent’s director] refers to the occupants as tenants in her interview and correspondence with TCIT. g. [The Respondent’s director] issued the tenants with 90-day notices to vacate the Property pursuant to and specifically referencing section 51(2)(a) of the Act. She also advised the Council of the following: Please look at the attached files regarding the 90-day notice to terminate a periodic tenancy given to all tenants of [The premises] yesterday, 17th December 2024, ending 18th March 2025. The landlord wants vacant possession for the purposes of sale. 13 h. [The Respondent’s director] utilised the Tenancy Tribunal to attempt to evict one of the tenants in 2024.14
In interpreting the exemption Ms Nicholas submits that section 11 of the Legislation Act 2019 is relevant which explicitly provides as one of the general principles of statutory interpretation that legislation “applies to circumstances as they arise”. This requires the Tribunal to consider the application of the exclusion over the entire occupation by the affected tenants, but not before. When doing so, the Tribunal is required to look at the legal nature of the relationship between affected tenants and the respondent on the basis of all of the evidence, and to look beyond “convenient label[s]”.15
Ms Nicholas provided the following documents to establish the purpose and intend of the reforms: 12 Dated 17 September 2024, from [Name redacted], Central Processing Officer. 13 Email 18 December 2024 14 [Tribunal order details redacted] 15 Musson v Dobrisek, DC CIV 2006-032-000036, Judge Broadmoore, 5 May 2006, at [24]. a. Regulatory Impact Statement: Transitional and Emergency Housing Clarifying the Application of the RTA. b. Cabinet Paper: Transitional and Emergency Housing Clarifying the Application of the Residential Tenancies Act 1986. c. Cabinet Social Wellbeing Committee: Minute of Decision of 6 May 2020.
She specifically references the following from the Cabinet paper: 16
And the Cabinet Minute: 17
She accepts that the exclusion under section 5(1)(y) of the Act sought to combat the increase in the lengths of stay in transitional and emergency housing. But says that it goes beyond Parliament intention to apply to any housing provider whose tenants are funded by MSD.
MSD’s published emergency housing grants programme sets out the parameters of emergency housing assistance including the limited timeframes for which emergency housing assistance may be made available (being 7 nights or, in certain circumstances, up to 21 nights).18 MSD emergency housing suppliers must “opt in” to the MSD scheme per clause 18 of the MSD guidelines.
Clause 18 does provide for special circumstances in which emergency housing may be granted to a supplier who has not “opted-in” but there are specific criteria that must be fulfilled each time and are specific to each applicant. The Respondent does not meet these criteria Ms Nicholas submits. 16 at paragraphs 30—32 17 at paragraph 6 18 https://www.workandincome.govt.nz/map/legislation/welfare-programmes/emergency-housing- grants-programme/clause-17-period-and-amount-of-grant.html (26 August 2024).
As such she says, emergency accommodation is a short-term solution and not intended to apply indefinitely. To facilitate accommodation with no end in sight would defeat the purpose of the emergency housing exclusion.
The effect of taking the approach submitted by Mr McDougall Ms Nicholas submits would exclude almost all beneficiaries, a particularly vulnerable community, and negate the intention of protections afforded in the Act.

Were the subject tenancies residential tenancies?

It is accepted that all occupations at [The premises] by the subject tenants were residential tenancies.
This is because pursuant to section 2 of the Act, a tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent. ‘Residential premises’ are any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful.
Pursuant to section 4 of the Act, the Act applies to all residential tenancies unless specifically provided.
Section 5(1)(y)(i)(B) states the following exemption to the application of the Act: This Act shall not apply in the following cases:... if the premises are used to provide emergency or transitional accommodation and... The provision of the accommodation is funded wholly or partly by... any other payment made by a government department for the provision of emergency or transitional accommodation to people in need of housing.
It is also accepted that: a. MSD paid all or some of each tenant’s rent. b. There is no specific evidence as to why MSD paid each tenant’s rent. c. There is no evidence that any of the tenants were being provided with services to assist their transition to more permanent accommodation. d. There is no documentation that these tenants signed when they commenced their occupancies stating the nature and intent of their stays.

Was the premises used to provide emergency or transitional accommodation?

As noted by Mr McDougall, there is no definition of emergency or transitional accommodation in the Act. As is the way where there is ambiguity, the Tribunal looks to supporting legislation and case law.
Firstly, it is well established in the Tribunal as noted by Ms Nicolls, that in order to give effect to the Act’s true intent and meaning, the courts (and the Tribunal) are required to interpret the exemptions in section 5 strictly and not liberally. 19
I also accept the position of the High Court in Cavanagh v Egmont Eco Leisure Park [2022] NZHC 3601 (Cavanagh) and in overseas jurisdictions as noted by Ms Nicholas, 20 that a statutory exclusion must be assessed at the time it is sought to apply to the occupancy. That is logical as change is constant.
Of further relevance is that the Act is protective legislation, and the Tribunal is required to uphold those protections. 21 The Tribunal in MBIE v Reeves & Zan Investment Ltd 22 (Zan) accepted jurisdiction in similar circumstances noting: [51] ... it cannot have been the intention of Parliament that just because the terms are not defined in the RTA, that a tenant would be deprived of their protections under the RTA, just because they were in urgent need of housing, and because WINZ paid their rent, and because of those two factors the landlord could self-select to operate outside of the RTA protections.
The learned Adjudicator referenced the Court of Appeal in Want v Parbhu and Patel [2019] NZCA 674: [19]Furthermore, the purpose of the Act was to protect both landlord and tenant by introducing fair and readily enforceable rules. The Tribunal’s role was to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which the Act applied. This was inconsistent with the suggestion that the Act applies only when the tenancy is lawfully established. Rather, the desire was for the Act to be comprehensive, and technicalities were to be avoided. Excluding tenancies where there is a problem with the legality of the tenancy would also prevent a class of tenants from having access to the protective regime established by the Act, which Cooke J was not satisfied could be resolved by application of s 137. 23
Another recent Tribunal case as referenced by Ms Nicholas promotes the principle of accountability: 24 19 Adams v Massey University, DC Plaint No: TT 43/94, Judge Toomey, 10 October 1994, at page 3. 20 Phillips v Cononeos (1986) 6 NZWLR 114 (SC). 21 At [52] 22 [2024] NZTTT 4615570 23 I note that this decision has been appealed to the District Court however as yet no decision has been issued by the Court. 24 Applicant v 999 Limited (T/A Hawera Studios & Apartments) [2024] NZTT 4926975; [9] Adjudicator King in Applicant v Bliss [2024] NZTT 467341 succinctly set out that Emergency Housing is short term (7 day) emergency accommodation. It is funded by WINZ though the one-off Special Needs Grant to qualifying applicants. Emergency housing can only be provided by suppliers registered with WINZ, who are approved and have contracted to meet the specified standards. Providers of emergency housing are accountable not through application of the RTA but under their provider contracts. Adjudicator King also set out that Transitional Housing is different from emergency housing. It provides short term accommodation for those in need of housing. It is partly paid for by the tenants, with top up payments able to be funded by the Ministry of Housing and Urban Development. Again, Transitional Housing is only able to be provided by approved suppliers contracted to MHUD. The suppliers are accountable under their supplier contracts, not through application of the RTA.
Mr McDougall refers to the Tribunal decision of Pillay v Safe Haven Housing Trust Board 25 (Pillay) where he submits the Cavanagh decision was not followed strictly. In Pillay the Tribunal found that it was not necessary for a landlord to be registered as a CEH to come within the exclusion. The fact that the provider was funded partly by payment from the Department of Internal Affairs (DIA) for the provision of emergency or transitional accommodation to people in need of housing was sufficient. 26
The Tribunal in Pillay also did not require the agreement to specifically reference emergency accommodation but found weighty that the clear intention of the agreement was for it to be short term. 27
Whilst on the face of it the Pillay decision appears to intentionally not follow the Cavanagh decision, I am not convinced that is the case. The two situations were very different. In Pillay the provider received grants for the operating expenses for emergency housing for asylum seekers and abandoned migrants. 28 In Cavanagh the funds were in the nature of advances on a job seekers benefit. 29
Both decisions however focussed on the reason for the funding from the governmental body. As Justice Grice stated: The requirement is that the payment is made “for the provision of emergency or transitional accommodation to people in need of housing”, 30 in Pillay it was, in Cavanagh it was not. I discuss this further below.
Regardless, I accept Ms Nicholas’ submission that the Pillay decision is distinguished from these tenancies because the provider was receiving funds 25 [2023] NZTT 4421644 26 At [26] 27 At [57] 28 At [40] 29 At [34] 30 At [36] (by way of grant) directly from DIA specifically for the purposes of emergency housing for asylum seekers and abandoned migrants. No grants were received here.
Mr McDougall also referenced another Tribunal case where it was accepted that if MSD arranged and paid for the accommodation as emergency housing it was irrelevant that the stay was extended to three months, and as such the arrangement came under the exclusion throughout. 31
I turn now to these tenancies, and the use of the premise during their occupation. Certainly between 2019 and some point in 2021/2022 the premise was used by MSD and others to provide emergency accommodation. This was primarily in response to urgent measures taken by the Council to address homelessness.
After the 2022 reforms the premise was not a CEH and there is no evidence of any specific communication between MSD and the Respondent referencing emergency accommodation, nor were any EH SNG payments made. Certainly, people still stayed at [The premises] for varying periods, and I accept that it is more likely than not that most occupants were on benefits paid by MSD.
[The premises] may well have carried on as it did when it was accepted as an emergency housing provider, but the pertinent difference is that MSD and MHUD no longer classified nor utilised [The premises] as a CEH. Provisions had been introduced to regulate such providers and [The premises] did not fit or had not applied to fit within those provisions.
The Residential Tenancies Amendment Bill: Select Committee report back 32 states that “Emergency and transitional housing is a short-term safe place to stay while longer-term accommodation can be found”. This indicates that there must be additional work/support to secure long-term accommodation occurring simultaneously to the short-term accommodation. There is no evidence here that any such work or support was in place for any of these tenants.
The Cabinet redesign in 2022 was for a purpose. The provision of and qualification for emergency housing was tightened. For the Tribunal to classify a provider as an emergency housing provider when it does not fit within new provisions would be to subvert the purpose of the restructure.
It would also render these vulnerable tenants without safeguard. Without the protections of the Act and without the protections of the emergency housing scheme, they and their homes would be lawless. Parliament cannot have intended to withdraw the protection of the Act without alternative protections being available, particularly given the vulnerable nature of these tenants. 31 X v X [2025] NZTT 5041728 32 Residential Tenancies Amendment Bill: Select Committee report back - Te Tūāpapa Kura Kāinga - Ministry of Housing and Urban Development
[The Respondent’s director] purchased [The premises] in 2019 at a time she was successfully providing emergency accommodation at her other motels/lodges funded through EH SNG. [The premises] became such a provider until 2022 when reform to the emergency housing system was introduced.
[The Respondent’s director] clearly resisted attempts in 2022 by the Council to revert [The premises] back to tourist accommodation 33 as she considered there was still a need to provide the accommodation she did. Her understanding was that this was being done in line with “the government's changes in relation to emergency housing providers” 34 however says “Changing properties from use as emergency housing, back to fully functioning tourist accommodation was never going to be a simple task. The Council did not provide a clear transition for how this should be implemented.” 35
She was therefore aware that change was afoot in the classification of emergency housing and yet continued to operate in the same fashion: needs based and paid through a tenant’s benefit. [The Respondent’s director] was aware she was no longer eligible for EG SNG nor was [The premises] a CEH, and the Council was unhappy with the use, however there was still sufficient demand for such accommodation to allow her to continue.
I cannot accept the submission that just because a person cannot find alternative accommodation, that they are housed in emergency accommodation. This would be the position of many New Zealanders whether they are privately or publicly homed, more so in particular regions.
Upon full and careful consideration of the above, the term ‘emergency accommodation’ in the Act appears to me to be intended to mean: a. Short term transitional accommodation: it is not indefinite and is entered into by both parties as a stop gap measure. b. Accommodation that is supported by services to facilitate a move out of the accommodation to longer term homes. c. Accommodation that is regulated and reviewed by a government department in some way because it is accepted as not suitable for long term accommodation.
[The premises] continued after 2022 to provide accommodation to people in need, however did not meet these characteristics. 33 P53 Affidavit of [The Respondent’s director] 16 April 2025 34 P 52 Affidavit 35 P 54 Affidavit
For the reasons discussed above, I do not find it established in evidence that the premise was used to provide emergency or transitional accommodation during the tenures of these tenants. Was the provision of the accommodation funded wholly or partly by any other payment made by a government department for the provision of emergency or transitional accommodation to people in need of housing?
I accept that it is most likely that the subject tenants were all beneficiaries, and they paid their rent with money from their benefit, either by way of redirection or directly. The question is then whether the money they obtained from MSD to pay their rent was for the provision of emergency or transitional accommodation.
There are no agreements in evidence for any of the subject tenants however [The Respondent’s director] provided the standard “check in” document she says is used for all tenancies, as follows:
Company Rules were also given to tenants, the only relevant section is as follows:
Of relevance I note the reference to a bond and a rent redirection. There is no reference to emergency accommodation or short-term stays. Rent is sought two weeks in advance.
At paragraph 60 of the Zan decision the Tribunal noted: that does not make those occupants the recipients of transitional or emergency housing as contemplated in the RTA just because they are a client of MSD, or their rent paid directly by MSD to the landlord.
The Tribunal there found weight in the lack of evidence that the payments were specifically for emergency or transitional housing. 36 The learned adjudicator also noted the MHUD “Operational Guidelines for Providers of Transitional Housing, December 2023”. 37 The guidelines set out expectations on transitional housing providers, such as not charging more than 25% of the tenant’s income as rent and having an individualised plan to transition the tenant to longer-term housing, and other community support services like budgeting or social services.
One tenant’s 38 statement 39 says her rent was $650 weekly 40 and she received $501 per week in benefit. Another tenant’s 41 untested statement is that her rent was $750 another’s 42 was $380 to share a studio.
The High Court in Cavanagh as followed in Zan overturned the District Court decision finding that any payment from MSD would meet the provisions of this section: [35]Rather, the money was in the nature of advances on Mr Cavanagh’s job seeker benefit. I am of the view that payment of a bond as well as weekly rental without any indication that the accommodation 36 At [55] 37 At [57] 38 [Tenant 1] 39 Which has not yet been tested in evidence 40 19 November 2024 41 [Tenant 2] 42 [Tenant 3] was for a limited period indicates it was not for “emergency or transitional accommodation”. [36]The fact that the rental and bond were paid by a government department is insufficient in my view to satisfy the requirements of s5(1)(y)(i)(B). The requirement is that the payment is made “for the provision of emergency or transitional accommodation to people in need of housing”.
Justice Grice did not accept the exemption applied even though the relevant provider was registered to provide emergency housing. 43 What was relevant was the reasoning for the actual payments from MSD for the housing of the relevant tenant.
Mr McDougall contends that the High Court in Cavanagh cannot be right because subsequent Tribunal decisions do not follow the decision. He also submits that it is nonsensical that the exclusion will only apply when the payment is specifically made for emergency or transitional accommodation as Justice Grice in Cavanagh held 44 because if MSD continues to fund the guest and they remain at the property then they are still being funded for an urgent housing need.
He also distinguishes Cavanagh from the current situation because [The premises] was solely used for emergency housing, MSD remained involved in the placement of occupants, the check in document does not indicate it was a tenancy and no bond was required.
Firstly, I am bound to follow Cavanagh being that it is a High Court decision.
Secondly, other than it being accepted that there were no bonds paid in these tenancies, none of the submitted distinguishing factors are established in evidence. There is no documentation that links any subject tenant as having been placed there by MSD or MHUD, or meeting government criteria for requiring emergency housing. The evidence in contrast is that MSD did not pay for the tenants’ accommodation by way of emergency housing payments. The check in document also indicates a lengthier stay than is envisaged by emergency housing provisions.
That there was no bond is a factor that evidences the true arrangement Mr McDougall submits as he says it shows the accommodation was not intended to be residential or long term. There is however no dispute that [The premises] provided residential accommodation. Further whether there was intention or not, many of the subject tenants did reside there on a long-term basis. 45 There 43 At [28] 44 At [37] 45 [Tenant 4] 09/19-25. [Tenant 1] 02/24-25. [Tenant 5] 02/24-25. [Tenant 6] 12/23-25. [Tenant 7] 12/23-25. [Tenant 8] & [Tenant 9] 11/23-25. is no evidence that any subject tenant intended this to be stop-gap accommodation.
Justice Grice as above found it relevant that there was no indication that the accommodation was only for a limited period and the same applies here. The arrangement for these tenants was, more accurately, set up to allow short or long term stays.
A further case provided by Mr McDougall is where the Tribunal accepted on the basis of dated evidence that the provider was paid by MSD under the EH SNG and as such the exemption applied even though the stay had been extended to several months. 46 That is not the situation here as that provider was paid under the EH SNG, and [The premises] was not.
With respect to Mr McDougall’s submission regarding the conflict in government department position, I accept the comments of the adjudicator in Zan: 47 [62]...On the surface that conflict seems apparent, but when viewed on the basis of their operational focus, I am not sure that conflict does exist. [63] MSD have a focus on people being housed, and within that work they pay rent from the person’s benefit. I am not familiar with MSD screening prospective premises or landlords to ensure a minimum standard of accommodation is provided. The primary responsibility on MSD is to pay out their client’s benefits, it is not the role of MSD to filter who that benefit is ultimately paid to, which means it is not for MSD to approve or otherwise reject their client’s choice of ‘landlord’. [64] On the other side of the ledger is MBIE, which has a focus on ensuring minimum housing standards are met via its Tenancy Services division. To that extent, the two agencies are not necessarily overlapping in their responsibilities.
Mr McDougall’s further submission that it would be unjust to penalise a previous emergency housing supplier for continuing to provide a similar service is somewhat misleading. It has always been within [The Respondent’s director]’s control to operate as she sees fit. In doing so however, she must abide by the relevant laws. She chose to operate in a way that was no longer classified by MSD or MHUD as emergency housing and it was therefore incumbent on her to ensure she did so lawfully. 46 Hrbek v Younger [2023] NZTT 4470544. 47 The Chief Executive, Ministry of Business, Innovation, and Employment v Robert Thomas Reeves, Zan Investment Limited [2024] NZTT 4615570, at [62-64]
There is simply no evidence that any occupant of [The premises] since 2022, let alone these tenants, was having the rent paid by emergency housing provisions under any government department. To the contrary.
Nor is there any evidence that the Respondent was in receipt of any grants by any government department for a similar purpose.
Furthermore and of paramount importance, each of these tenancies is to be considered separately. The tenants all stayed for relatively lengthy periods. They all paid rent two weeks in advance. There is no evidence they were being supported to move on and there is no evidence they would otherwise have been homeless.
One tenant’s 48 untested statement says she “moved elsewhere due to the unhealthy living environment”. 49 Another tenant’s text messages say he moved around the corner. 50
For the aforementioned reasons, I find that the provision of the accommodation at [The premises] for the subject tenants has not been established to have been funded wholly or partly by any other payment made by a government department for the provision of emergency or transitional accommodation to people in need of housing.
Accordingly, I find that the Act applied to these tenancies and therefore the Tenancy Tribunal has jurisdiction.
I direct a case conference for further directions to be made progressing the claims to hearing.
The parties will be notified in writing by Tenancy Services of the date and time of the case conference.

Should interim suppression orders be made?

The Respondent seeks suppression of the following details pursuant to s 95A of the Act: a.The name of the Respondent, b.The name of the director of the Respondent, [The Respondent’s director], c.The address of the premises; and d.Any other identifying particulars. 48 [Tenant 2] 49 Paragraph 7 50 JH21 p240
The grounds supporting the application are: i. The Respondent will face a significant and disproportionate risk of reputational harm with publication. ii. The public interest in open justice will be preserved despite suppression orders. iii. Emergency housing is a topical and charged subject. iv. The property is for sale and that process may be subverted by media coverage. v. Publication may lead to undue negative attention being directed toward neighbouring hotels, motels, or businesses that are uninvolved in the proceedings.
The Applicant opposes suppression orders, other than of the identifying details of tenants as required by s95A(2) of the Act. Ms Nicholas submits that the possibility of reputational harm is insufficient to warrant such orders.
She submits that the position that there could be harm to neighbouring businesses is speculative at best and would set a dangerous precedent in Tribunal proceedings.
She further says that the argument that emergency housing is politically and socially charged actually supports publication because such recipients are vulnerable members of society.
She references the case of Auckland City Mission Housing Limited v Aalyah Avega 51 where a similar argument was run on the grounds it was a social housing provider and publication could damage the reputation of Auckland City Mission in the eyes of their clients, including those who are vulnerable.
The Tribunal there reiterated the importance of the public interest and that the law must be seen to be administered openly and fairly and without favour or prejudice. 52 The Tribunal considered that granting name suppression to the landlord despite not being successful in their claim would “serve only to create a false distinction between Auckland City Mission as a social housing provider and other social housing providers, or between social housing providers and other landlords,” 53 that there was no reason why the landlord’s reputation is any different to any other landlord and it would be contrary to the interests of justice to create such a distinction. 54 51 Auckland City Mission Housing Limited v Aalyah Avega [2025] NZTT 5192872 at [9 52 At [11] 53 At [13] 54 At [14]-[15]
The Respondent has not been successful in their application to exclude the subject tenancies accordingly, pursuant to section 95A(4) of the Act, I can only approve their application for suppression if having regard to the interests of the parties and to the public interest I consider it just to do so.
I do not accept the argument that the Respondent, or any of the neighbouring properties may suffer reputational harm if their details are published. There is nothing inherently damning in this decision that would do so, it is primarily a legal discussion. Such a risk is also not relevant to a consideration of public interest.
The principle of open justice requires the presumption of publication to prevail unless there is good reason for it not to, and section 95A does not detract from that.
This decision is however essentially a preliminary matter to hearing the Applicant’s claims. In the interests of natural justice and the right of the Respondent to have a fair hearing on the claims, I consider it just 55 to suppress the identifying details of the Respondent at this stage.
However, this position will be reviewed upon the final decision being issued and at that stage, if the Tribunal sees fit, these suppression orders may be lifted.

Tenancy Tribunal case 5159832 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 5159832 — Tenancy dispute

At a glance

Claims & awards

Order

Reasons

Were the subject tenancies residential tenancies?

Was the premises used to provide emergency or transitional accommodation?

Should interim suppression orders be made?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Were the subject tenancies residential tenancies?

Was the premises used to provide emergency or transitional accommodation?

Should interim suppression orders be made?

Topics & place

Residential Tenancies Act sections

Frequently asked questions