Guo v Korck - [2019] NZHC 1541

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-123

[2019] NZHC 1541

UNDER Section 119 of the Residential Tenancies Act 1986

IN THE MATTER

of an appeal from the Decision of the District Court on 10 January 2019

BETWEEN

GARY GUO

Appellant

AND

GRANT D W KORCK

First Respondent

AND

LARA A KORCK

Second Respondent

Hearing: 26 June 2019

Appearances:

Appellant, Self-represented

First and Second Respondents, Self-represented

Judgment:

3 July 2019

JUDGMENT OF WALKER J

This judgment was delivered by me on 3 July 2019 at 2.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

GUO v KORCK & ANOR [2019] NZHC 1541 [3 July 2019]

Introduction

[1] This appeal is about the ambit of the tenant immunity for damage to a landlord’s property under ss 268 and 269 of the Property Law Act 2007 (“PLA”).

[2] The appellant, Mr Guo, is the landlord of a property at 12 McCahon Place, Auckland (“the property”). The respondents, Mr and Mrs Korck, were tenants in the property with their three children and two toy poodle dogs, between 28 April 2017 and 29 December 2017.

This appeal

[3] Mr Guo appeals against a decision of Judge Harrison of the District Court delivered on 10 January 2019. That decision quashed an order of the Tenancy Tribunal (“Tribunal”) dated 7 May 2018, in so far as it found the Korcks liable to pay Mr Guo
$10,000 to replace damaged carpet at the property. The Tribunal adjudicator had found that the damage was caused by the Korck family’s two dogs over a period of time.

[4] The District Court held that the damage to the carpets was not intentionally caused within the meaning of s 269(3)(a) of the PLA. The tenants were therefore exonerated from paying for the damage because the landlord had insurance over the property.

[5] Mr Guo’s grounds of appeal were developed in careful and focused oral submissions at the hearing. They are that the Judge:

(a)Did not rely on any principle or authority in support of the conclusion that the permission for the two dogs under the tenancy meant that damage by the dogs was not intentionally done or caused.

(b)Misinterpreted the decision in Tekoa Trust v Stewart.1

(c)Omitted to consider the tenants’ representation that the pet dogs were house-trained and their written undertaking not to allow their pet dogs

1 Tekoa Trust v Stewart [2016] NZDC 25578.

to urinate or defecate inside the house as part of their application to rent the property.

(d)Adopted an incorrect test in his assessment of whether the damage was intentionally done or caused under s 269(3)(a) PLA.

[6] Mr Guo asks this Court to quash the decision of Judge Harrison and reinstate the order made by the Tenancy Tribunal. In addition, Mr Guo asks for:

(a)loss of rent due to carpet replacement work;

(b)the cost of replacement of a garage door remote;

(c)reimbursement for payment of water rates;

(d)reimbursement for the filing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Guo v Korck

Details

AGLC: Guo v Korck [2019] NZHC 1541
Case: [2019] NZHC 1541
Decision Date: 3 July 2019

CaseChat Overview and Summary

Guo v Korck is a legal dispute between Gary Guo, the landlord, and Grant and Lara Korck, the tenants. The central issue is the interpretation of tenant immunity for damage to a landlord's property under sections 268 and 269 of the Property Law Act 2007. Specifically, the case revolves around whether the tenants are liable for the extensive damage to the carpet caused by their pet dogs, despite the landlord's insurance covering the property. The tenants argue that they should not be held liable because the landlord had consented to the presence of the dogs, while the landlord contends that the damage was intentional and therefore not covered by the insurance.

The court's primary task was to determine whether the District Court Judge had correctly interpreted the law in dismissing the landlord's claim against the tenants. The High Court considered whether the District Court's decision that the damage was not intentional and thus not the tenants' responsibility was an error of law. The court concluded that the District Court erred in its interpretation of "intentionally caused" damage under section 269(3)(a) of the PLA. The High Court held that the damage, while not intended, was virtually certain to occur given the tenants' knowledge of the dogs' past behavior and their failure to mitigate the risk of further damage. Consequently, the court found that the damage should be regarded as intentionally caused, absolving the tenants of liability under the PLA.

The High Court quashed the District Court's decision and reinstated the Tenancy Tribunal's order that the tenants are liable for the damage to the carpet. The court also ordered the tenants to pay the landlord's legal costs and disbursements associated with the High Court proceedings. The landlord's claim for other expenses, such as loss of rent during the carpet replacement period, was not addressed due to lack of evidence or timeliness of the claims.

Orders