Karmarkar v Manda

[2019] NZCA 130

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA658/2018
 [2019] NZCA 130

BETWEEN	MADHAV HARI KARMARKAR Applicant
AND	SHASHIDHAR MANDA Respondent

Court:	Miller and Clifford JJ
Counsel:	Applicant in person S A Keall for Respondent
Judgment: (On the papers)	30 April 2019 at 3.30 pm

JUDGMENT OF THE COURT

A        The application for leave to appeal is dismissed. 

BThe respondent is entitled to costs for a standard application on a band A basis.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

1. This is an application for special leave to appeal against a decision of van Bohemen J in which the Judge agreed with the Tenancy Tribunal and the District Court that Mr Manda’s tenancy in a residential establishment managed by Mr Karmarkar was a boarding house tenancy and not a fixed term tenancy.[1]  If the former, Mr Manda was entitled to leave on 48 hours’ notice.  It is because he did so that this issue has arisen.

   [1]Karmarkar v Manda [2018] NZHC 2774 [Leave decision].

2. Van Bohemen J refused leave to appeal to this Court in a judgment delivered on 25 October 2018.[2]  The Judge identified the following criteria for determining what constitutes a boarding house tenancy:[3]

   (a)Does the house contain one or more bedrooms along with facilities for communal use by the tenants?

   (b)Is the house occupied or intended to be occupied by six or more tenants?

   (c)Is the tenancy intended to, or does in fact, last for 28 days or more?

   (d)Are tenants granted exclusive rights to occupy particular bedrooms, whether that occupancy is for single or shared use?

   (e)Does the right to occupy a particular bedroom derive from the tenancy agreement between the individual tenant and the landlord rather than from a collective decision of the tenants?

   [2]Leave decision, above n 1.

   [3]At [4];  See also Karmarkar v Manda [2018] NZHC 2081 at [9]; and Karmarkar v Pandem [2018] NZHC 693 at [34]–[35].

3. All of these criteria are taken from the Residential Tenancies Act 1986, s 66B, which provides:

   …

   boarding house means residential premises—

   (a)containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and

   (b)occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time

   boarding house tenancy means a residential tenancy in a boarding house—

   (a)that is intended to, or that does in fact, last for 28 days or more; and

   (b)under which the tenant is granted exclusive rights to occupy particular sleeping quarters in the boarding house, and has the right to the shared use of the facilities of the boarding house

   …

   boarding room means a room in a boarding house that is used as sleeping quarters by 1 or more tenants of the boarding house, and that is for use only by a tenant whose tenancy agreement relates to that room

   …

4. The fifth criterion is best understood as an indicium distinguishing a boarding house tenancy from other residential tenancies.  The significance of the tenant’s right of occupancy deriving directly from the landlord rather than other occupants is that, as Judge Hinton explained, tenants on a residential tenancy are normally liable jointly and severally for rent and outgoings as between themselves and the landlord.[4]  In a boarding house tenancy, the landlord normally charges each tenant separately for rent and bond on a per-room basis.  That is what happened here.

   [4]Karmarkar v Manda [2017] NZDC 20851 at [20(c)].

5. We observe that van Bohemen J’s criteria are not exhaustive.  Whether a tenancy is a boarding house tenancy is a question of fact, to be assessed by reference to the characteristics discernible from ss 66A to 66Y of the Act. 

6. For these reasons we are not persuaded that the appeal raises any question of law that merits consideration by this Court or is capable of serious argument.[5] 

   [5]Waller v Hider [1998] 1 NZLR 412 (CA).

7. The application is accordingly dismissed.

8. Mr Manda was represented by counsel on this on-the-papers hearing before us.  As he did below, Mr Keall advised that he was prepared to act without fee but sought costs on the basis that he would invoice his client for the costs and they would be paid to him.  Contrary to the view taken by van Bohemen J, we do not consider that this breaches the principle on awarding costs that exceed those actually incurred.[6]  Accordingly, the respondent is entitled to costs for a standard application on a band A basis.

   [6]Court of Appeal (Civil) Rules 2005, ss 53(b), 53A(f), 53G.  See for example Marino v Chief Executive of the Department of Corrections [2017] NZCA 2; and In Tandem Maritime Enhancement Ltd v Waikato Regional Council (2000) 6 ELRNZ 329 (EnvC).

Solicitors:
Nicholls Law Ltd, Auckland for Respondent