Karmarkar v Manda - [2018] NZHC 2774

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-2182 [2018] NZHC 2774

BETWEEN
MADHAV HARI KARMARKAR

Appellant

AND

SHASHIDHAR MANDA Respondent

Hearing: On the papers

Counsel/Parties:

M H Karmarkar, in person, Appellant
No appearance for Respondent

Judgment:

25 October 2018

JUDGMENT OF VAN BOHEMEN J (LEAVE TO APPEAL)

This judgment was delivered by me on 25 October 2018 at 3.30pm
Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Parties: M K Karmarkar (Appellant), Auckland
Nicholls Law Ltd, Auckland

Counsel: S A Keall

KARMARKAR v MANDA [2018] NZHC 2774 [25 October 2018]

[1] Mr Karmarkar has applied for leave to appeal to the Court of Appeal against a judgment delivered on 15 August 20181 in which I upheld decisions of the Tenancy Tribunal and the District Court2 that the tenancy for a residential establishment that Mr Karmarkar operates in Mount Roskill is a boarding house tenancy under the Residential Tenancies Act 1986 (the Act). The effect of my decision and the earlier decisions is that Mr Karmarkar cannot recover monies he says are owed to him for non-payment of rent by former tenants under an agreement that Mr Karmarkar considered was a fixed term tenancy agreement.

[2] There was a delay in the application for leave being referred to me. By minute issued on 7 September 2018, I advised the parties that unless they advised by
17 September 2018 that they wish to be heard, I proposed to decide the leave application on the papers and would issue my judgment in due course. I did not hear further from the parties.

Relevant background

[3] The legal question raised by Mr Karmarkar’s appeal is identical to that raised in earlier appeal by Mr Karmarkar with respect to a different residential establishment. I heard that appeal on 20 March 2018 and dismissed that appeal on 8 May 2018 – after the present proceeding had been filed but before it had been heard.3 Mr Karmarkar also applied for leave to appeal that decision to the Court of Appeal. I declined leave in a judgment delivered on 18 May 2018.4

[4] In my earlier decision, Karmarkar v Pendem, I reviewed Part 2A of the Residential Tenancies Act and relevant District Court decisions in order to determine what constitutes a boarding house tenancy under the Act. I held that it was possible to make sense of the definitions of “boarding house”, “boarding house tenancy”, and “boarding room” in s 66B of the Residential Tenancies Act by asking the following
questions:5

1      Karmarkar v Manda [2018] NZHC 2801.
2      Karmarkar v Manda [2017] NZDC 20851.
3      Karmarkar v Pendem [2018] NZHC 693.
4      Karmarkar v Pendem [2018] NZHC 1110
5      Karmarkar v Pendem [2018] NZHC 693 at [34]-[35].

(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…

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 Karmarkar v Manda

Details

AGLC: Karmarkar v Manda [2018] NZHC 2774
Case: [2018] NZHC 2774
Decision Date: 25 October 2018

CaseChat Overview and Summary

Madhav Hari Karmarkar has applied for leave to appeal to the Court of Appeal against a judgment delivered on 15 August 2018, in which the court upheld decisions of the Tenancy Tribunal and the District Court that the tenancy for a residential establishment that Mr Karmarkar operates in Mount Roskill is a boarding house tenancy under the Residential Tenancies Act 1986. The effect of the decision and the earlier decisions is that Mr Karmarkar cannot recover monies he says are owed to him for non-payment of rent by former tenants under an agreement that Mr Karmarkar considered was a fixed term tenancy agreement. The legal question raised by Mr Karmarkar’s appeal is identical to that raised in an earlier appeal by Mr Karmarkar with respect to a different residential establishment. The court held that if the answer to all questions listed in the earlier decision is “yes”, the tenancy is a boarding house tenancy and the decisions of the Tenancy Tribunal and the District Court were correct. The court dismissed the application for leave to appeal to the Court of Appeal.

Orders