Holler v Osaki - [2012] NZHC 939

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2011-404-005536 [2012] NZHC 939

BETWEEN ANDREAS LUIGI HOLLER AND KATHARINE MARY ROUSE Plaintiff

ANDKENJI OSAKI First Defendant

ANDTEIKO OSAKI Second Defendant

Hearing: 2 December 2011

Counsel: E J Walton for plaintiffs
D G Collecutt for defendants

Judgment: 7 May 2012

JUDGMENT OF ASSOCIATE JUDGE ABBOTT

This judgment was delivered by me on 7 May 2012 at 3.30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
E J Walton, Wynn Williams & Co, PO Box 4341, Christchurch
A Meggitt, Simpson Dowsett Mackie, DX CP39001, Mt Roskill, Auckland

Counsel:
D G Collecutt, Barrister, P O Box 105270, Auckland

ANDREAS LUIGI HOLLER AND KATHARINE MARY ROUSE V KENJI OSAKI HC AK CIV 2011-404-
005536 [7 May 2012]

[1] The plaintiffs are the owners of a residential property at 16 Bonnie Brae Road, Meadowbank, Auckland. That property suffered damage from a fire whilst tenanted by the first defendant, Mr Osaki, and occupied by him, his wife (the second defendant) and their children.

[2] The plaintiffs seek summary judgment against the defendants for the cost of repairing the damage, alleging that the fire was caused by Mrs Osaki’s negligence.

[3] The defendants have opposed summary judgment on four grounds, two of which involve disputes of fact which potentially make the claim unsuitable for summary judgment. The other two grounds involve questions of law: firstly, that the Tenancy Tribunal has exclusive originating jurisdiction over these disputes and, secondly, that the claim is barred by ss 268 and 269 of the Property Law Act 2007.

[4] The parties have sought a determination of the two legal issues only (without considering the other two factual grounds) as they are likely to dispose of the application. Counsel agree that these grounds are, in effect, affirmative defences, and that the defendants’ opposition is tantamount to a strike out application. Nevertheless, counsel accepted that it was still for the plaintiffs to show that the defendants have no arguable defence.

The background

[5] The plaintiffs own a three bedroom house situated at 16 Bonnie Brae Road, Meadowbank, Auckland. In about September 2006 they agreed to rent it to Mr Osaki for use as a family home for himself, his wife and their three children.

[6] As at 19 March 2009 one of the plaintiffs, Mr Holler, had the house insured with AMI Insurance Limited under a rental property policy.

[7] On the evening of 19 March 2009 Mrs Osaki was at home with her children. She put a pot containing oil on an element on the stove to heat the oil ahead of preparing a meal for Mr Osaki.

[8] After turning the element up to maximum temperature, she left the kitchen to deal with a dispute between her children. She was with the children for about five minutes before noticing smoke and flames coming from the kitchen. She attempted, unsuccessfully, to put out the fire. The kitchen, living room and entrance were damaged before the Fire Department…

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 Holler v Osaki

Details

AGLC: Holler v Osaki [2012] NZHC 939
Case: [2012] NZHC 939
Decision Date: 7 May 2012

CaseChat Overview and Summary

The case of Holler v Osaki involved a dispute between the plaintiffs, who were the owners of a residential property, and the defendants, who were the tenants of the property. The plaintiffs sought summary judgment against the defendants for the cost of repairing damage caused by a fire that occurred while the defendants were occupying the property. The defendants opposed the summary judgment on several grounds, including the argument that the Tenancy Tribunal had exclusive jurisdiction over the dispute and that the claim was barred by sections 268 and 269 of the Property Law Act 2007. The court considered these legal issues, which were likely to dispose of the application.

The court found that the Tenancy Tribunal had exclusive jurisdiction over disputes between landlords and tenants relating to residential tenancies, but that its jurisdiction was limited by the monetary limit on orders it could make. The court also found that the purpose of sections 268 and 269 of the Property Law Act was to impose the risk of damage or destruction of the premises on the lessor, even in the absence of insurance, and to prevent the insurer from exercising a right to claim against the lessee. The court held that it was appropriate for the Tenancy Tribunal to determine whether these sections applied to the claims in the case, before the plaintiffs proceeded with the claims in the High Court. The court therefore stayed the proceeding pending a determination by the Tenancy Tribunal as to whether the claims were barred. If the Tribunal determined that the sections applied and operated to bar both claims, it seemed inevitable that the proceeding would then be struck out.

Orders