Neill v Neill Island Farms Limited
[2024] NZHC 2518
•4 September 2024
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV 2024-470-000016
[2024] NZHC 2518
UNDER the Residential Tenancies Act 1986 BETWEEN
JEANNE ISABELLA NEILL
Appellant
AND
NEILL ISLAND FARMS LIMITED
Respondent
Hearing: 2 September 2024 Appearances:
A Little for the Appellant
P Anderson for the Respondent
Judgment:
4 September 2024
JUDGMENT OF TAHANA J
This judgment was delivered by me on 4 September 2024 at 12 noon Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors:
Gibson Sheat Lawyers, Wellington Cooney Lees Morgan
NEILL v NEILL ISLAND FARMS LIMITED [2024] NZHC 2518 [4 September 2024]
Introduction
[1] This is an appeal from the decision of Judge I D R Cameron dated 28 November 2023.1 The Judge dismissed an appeal from a decision of the Tenancy Tribunal (the Tribunal) dated 21 July 2023. The Tribunal had granted Neill Island Farms Ltd (the Company) possession of a property at Omokoroa, Tauranga (the Property), formerly occupied by Jeanne Neill (Jeanne). I refer to first names to avoid any confusion given the shared family name.
[2] The key issue on appeal is whether the Tribunal had jurisdiction to grant the possession order. That issue turns on whether Jeanne was occupying the Property under a tenancy or pursuant to a licence to occupy. If the occupancy was under a tenancy, then the question is whether she is a family member of the Company (as landlord or owner) such that the Residential Tenancies Act 1986 (RTA) does not apply.2
[3]Before considering these issues, I set out the relevant background.
Background
[4] The Company was incorporated in 1979 and is the owner of an avocado orchard on Matakana Island. The Company purchased the Property in 1981.
[5] The J & T family trust (the Family Trust) was settled on 23 July 2001 with Jeanne’s parents, Tui and John, as trustees. The primary beneficiaries are Tui, John and their children. The trustees of the Family Trust own 99 per cent of the shares in the Company. The estate of John owns 0.5 per cent and Tui (deceased) owns the other
0.5 per cent. Tui’s shareholding has not yet been transferred to her estate.
[6] The Property was used as the family home of John and Tui. John passed away and Tui continued to reside at the Property alone.
1 Neill v Neill Island Farms Ltd [2023] NZDC 25982.
2 Residential Tenancies Act, s 5(1)(n).
[7] In 2016, Tui had knee surgery and Jeanne returned from Sydney to support her for that operation. Tui suffered complications from her surgery and moved to a rest home in 2016.
[8] Jeanne’s siblings, Iain and Fiona, became directors of the Company in June 2018. Tui remained a director until sometime in 2019.
[9] On 17 December 2018 the Company wrote to Jeanne informing her that she may stay at the Property during her visits to Omokoroa from Australia. That letter expressly stated that “this is not a fixed term tenancy or any other form of tenancy arrangement. Rather the Company is agreeable to you staying at the property when you visit New Zealand from your home in Australia.”
[10] Jeanne visited New Zealand in February 2020 to see her mother and remained due to COVID-19 restrictions.
[11] On 19 July 2021, the Company wrote to Jeanne noting that she had put locks on the gate thereby preventing access to the Property. The Company notified Jeanne that she was to pay rent and requested payment for utilities.
[12] On 18 October 2021 the Company wrote to Jeanne giving her two weeks’ notice to leave the Property and indicating that the Company had tenants wanting to move in. Jeanne remained at the Property.
[13] Sadly, Iain passed away in May 2022 and Tui passed away in September 2022. Jeanne continued to occupy the home. Jeanne challenges the authenticity of documentation regarding Iain’s death in Thailand.
[14] The Company wrote to Jeanne in 2022 requesting that she pay rent. In April 2023, the Company wrote again to Jeanne seeking to increase the rent.
[15] The Company applied to the Tribunal for termination of the “tenancy” because of outstanding rent.
Tribunal decision
[16] The Tribunal determined that Jeanne was occupying the Property under a licence to occupy rather than a tenancy. The Tribunal’s decision notes that Fiona (Jeanne’s sister) for the Company conceded the occupation was in the nature of a licence to occupy. The Tribunal agreed and referred to communications between the Company to Jeanne between 2018 and 2022 emphasising that the arrangement was not a tenancy.
[17] Because it was not a tenancy, the Tribunal did not consider that it was required to determine whether s 5(1)(n) of the RTA applied.
[18] The Tribunal considered that the Company was entitled to possession of the Property under s 65 of the RTA. The Tribunal was satisfied that the Company had revoked the licence to occupy, and Jeanne was required to leave the Property.
[19] The Tribunal therefore found that it was required to grant possession under s 65 of the RTA.
District Court decision
[20] The Judge briefly summarised Jeanne’s argument that s 5(1)(n) of the RTA applies. The Judge noted that the definition of tenancy includes a “former tenancy” where appropriate but did not consider that this applied because the appellant occupied the property under a licence to occupy.3
[21]The Judge then concluded:
[8] Thus I conclude that the Tribunal was correct to find that s 5(1)(n) of the Act did not apply and therefore the Residential Tenancies Act applied. It follows that the Tribunal was entitled to consider s 65 of the Act, and find that pursuant to it the Tribunal had jurisdiction to make a possession order granting possession of the premises to the respondent.
[22] Given the above finding, the Judge did not consider it necessary to determine whether the appellant was a family member for the purposes of s 5(1)(n) of the RTA.
3 At [7].
Approach on appeal
[23] Any party who is dissatisfied with the decision of the District Court Judge under s 117 of the RTA as being erroneous in point of law may appeal to the High Court on that question of law under s 119.4 Every appeal under s 119 is dealt with in accordance with the High Court Rules 2016.5
[24] The Court is not to substitute its own views for that of the lower Court; instead it must consider whether the decision under appeal reveals a misinterpretation or misapplication of the statutory powers in the RTA, and if not, whether what has been decided is so misconceived that it is an unlawful decision.6
Relevant law
[25]Section 5(1) prescribes the cases where the RTA does not apply:
5 Act excluded in certain cases
(1) This Act shall not apply in the following cases:
…
(n)where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family:
[26] Section 65 prescribes when a person entitled to possession of a property may apply to the Tribunal for possession orders:
65 Eviction of squatters
(1) Where, on the application of any person entitled to possession of any residential premises, the Tribunal is satisfied that any other person is in possession of the premises as a squatter or 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, the Tribunal shall make a possession order granting possession of the premises to the applicant.
….
4 Residential Tenancies Act 1986, s 119(1).
5 Section 119(2).
6 Anderson v FM Custodians Ltd [2013] NZHC 2423 at [32], approved in Smith v Accessible Properties New Zealand Ltd [2018] NZHC 1010 at [31].
Analysis
[27] The first issue is whether the Judge erred in finding that s 5(1)(n) did not apply. That question turns on whether Jeanne’s occupation of the Property was subject to a licence to occupy or a tenancy.
Was there a tenancy or licence to occupy?
[28]Tenancy is defined in the RTA:
2 Interpretation
(1) In this Act, unless the context otherwise requires,—
…
tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy.
[29] Mr Little for Jeanne argued that she was occupying the Property under a tenancy because her occupation was in consideration for her providing care for her mother. Mr Little argued that the periodic care she provided was in effect, rent, which is defined in the RTA, as follows:
rent means any money, goods, services, or other valuable consideration in the nature of rent to be paid or supplied under a tenancy agreement by the tenant; but does not include any sum of money payable or paid by way of bond.
[30] In support of a tenancy, Mr Little referred to Jeanne’s evidence before the Tribunal where she stated:
13In 2016, my mother was scheduled to have knee surgery and it was agreed that I would return to New Zealand to be her support person for that operation.
14My mother confirmed by telephone that I could stay at the Property when I was visiting New Zealand. She did not place any conditions on this stay. There was no expectation that I would pay rental, electricity or otherwise to maintain the Property. My understanding from our discussion was that this applied to my subsequent stays in New Zealand. … My mother confirmed to me that she had informed Fiona and Fiona’s partner, Richard that I could stay. Richard told me
he had received this message from my mother. I know Iain agreed as Iain and I had specific discussions about this in December 2016 and October 2017.
[31] The above evidence does not establish that Tui agreed that Jeanne’s right to occupy the Property was in consideration for her providing her care. There is no reference in the above passages to support being a condition of Jeanne’s occupancy. Rather, Jeanne states “[s]he did not place any conditions on this stay.”
[32] Further, that the right to occupy was not subject to any consideration from Jeanne is also supported by the letter dated 17 December 2018 from the Company to Jeanne. That letter does not refer to any agreement requiring Jeanne to support her mother, Tui. Mr Little argued that the letter needs to be read in the context of the previous discussion between Tui and Jeanne, and in the absence of Jeanne’s agreement to the letter, the agreement with Tui stands.
[33] It was therefore open to the Tribunal and the District Court to reject Jeanne’s argument that s 5(1)(n) applied. At [21] of its decision, the Tribunal referred to Jeanne’s position that she is entitled to be in the premises because of her late mother’s wishes. That position was rejected because the Tribunal considered that the Company was entitled to determine who may occupy the Property. The District Court also accepted that Jeanne’s occupation was subject to a licence to occupy. That finding was available to the Tribunal and the Judge on the evidence and does not amount to an error of law.
[34] Mr Little argued that the Tribunal’s and District Court’s reliance on the correspondence from the Company to Jeanne disregarded the other documentation, which includes Jeanne’s evidence and the Family Court consent memorandum evidencing care arrangements for Tui.
[35] The Judge was entitled to rely on the correspondence from the Company in December 2018 to determine the nature of the occupancy arrangements. That letter is contrary to the submission that Tui agreed that Jeanne could occupy the property until it was sold. There is no reference to such an arrangement in the letter.
[36] Further, the Family Court consent memorandum does not refer to Jeanne’s occupation of the Property. It concerns care arrangements for Tui. I am not therefore satisfied that the right to occupy was in consideration for the care Jeanne would provide.
[37] I therefore do not consider that the Judge erred in finding that Jeanne had not occupied the property under a tenancy but under a licence to occupy.
[38] It is not therefore necessary to consider whether the tenancy was with a member of the landlord or tenant’s family as I am satisfied that s 5(1)(n) does not apply. It follows that the Judge did not err in finding that s 5(1)(n) did not apply.
Validity of possession order
[39] I also agree with the Judge’s finding that any licence to occupy had been revoked by the Company as the owner of the Property. At the time of the Tribunal’s decision, Jeanne did not have any ongoing right to occupy the Property. It follows that the Tribunal was required to make a possession order in favour of the Company under s 65 of the RTA.
[40] For the above reasons, the decision of the District Court Judge was not erroneous in point of law.
Result
[41]The appeal is dismissed.
Costs
[42] My preliminary view is that the respondent is entitled to costs on a 2B basis. If the parties are unable to agree costs:
(a)the respondent is to file and serve a costs memorandum within 15 working days of the date of this judgment; and
(b)the appellant is to file and serve a memorandum in response within a further 10 working days.
[43] No memorandum is to be longer than three pages. Unless I hear further from counsel, costs will be determined on the papers.
Tahana J
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