Karmarkar v Manda - [2018] NZHC 2081

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-2182

[2018] NZHC 2081

BETWEEN
MADHAV HARI KARMARKAR

Appellant

AND

SHASHIDHAR MANDA

Respondent

Hearing: 4 July 2018

Appearances:

M H Karmarkar, in person, Appellant S A Keall for Respondent

Judgment:

15 August 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 15 August 2018 at 11.30am 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 2081 [15 August 2018]

[1] Madhav Hari Karmarkar appeals a decision of Judge Hinton in the Auckland District Court.1 In that decision, the District Court upheld a decision of the Tenancy Tribunal 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 this decision is that Mr Karmarkar cannot recover monies he says are owed to him by Shasidhar Manda for non-payment of rent because Mr Manda has complied with the rental payment and notice requirements for a boarding house tenancy under the Residential Tenancies Act. Mr Karmarkar says the Tenancy Tribunal and the District Court were wrong in concluding that the tenancy agreement for his establishment is a boarding house tenancy agreement.

[2] In legal terms, Mr Karmarkar’s appeal in this case is identical to another appeal by Mr Karmarkar I dismissed earlier this year with respect to a different residential establishment.2 I heard that appeal on 20 March 2018 after the present proceeding had been filed. The present proceeding was not brought to my attention during the earlier hearing. Had I been aware of it, I would have ordered that the two proceedings be heard together.

Relevant facts

[3] The property in question in the current appeal is at 34 White Swan Road, Mount Roskill, Auckland. Mr Karmarkar asserted that the tenants lived there as flatmates and shared responsibility for the allotment of bedrooms and the use and care of common areas. These and other matters were set out in an annexure to a tenancy agreement which Mr Karmarkar asserted Mr Manda had agreed to by email exchange prior to moving in. The tenancy agreement was stated to be a fixed term starting on 7 November 2016 and ending on 15 April 2017.

[4] Despite the appearance of a communal flatting situation, the reality was different. Mr Manda came to the property later in November 2017 after answering a Trade Me advertisement on 17 November 2016. After email exchanges with Mr Karmarkar’s agent, Mr Manda met the agent at the property where he was shown a

1 Karmarkar v Manda [2017] NZDC 20851.
2 Karmarkar v Pendem [2018] NZHC 693.

room which he was to share with others whom he had not met before. The room had its own lock. Mr Manda was charged rent and a bond on…

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 2081
Case: [2018] NZHC 2081
Decision Date: 15 August 2018

CaseChat Overview and Summary

Madhav Hari Karmarkar appealed a decision of Judge Hinton in the Auckland District Court, which upheld a decision of the Tenancy Tribunal 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 this decision was that Mr Karmarkar could not recover monies he claimed were owed to him by Shasidhar Manda for non-payment of rent, as Mr Manda had complied with the rental payment and notice requirements for a boarding house tenancy under the Residential Tenancies Act. Mr Karmarkar argued that the Tenancy Tribunal and the District Court were wrong in concluding that the tenancy agreement for his establishment was a boarding house tenancy agreement.

The appeal raised the legal issue of whether the tenancy was a boarding house tenancy under the Residential Tenancies Act. The court applied the relevant law, which was that if the answer to all of the questions in the earlier decision was "yes," then the tenancy was a boarding house tenancy and the decisions of the Tenancy Tribunal and the District Court were correct. The court held that the answer to all of those questions in the current case was "yes." Therefore, the tenancy was a boarding house tenancy and the decisions of the Tenancy Tribunal and the District Court were correct. The appeal was dismissed.

The court also considered the issue of costs. Mr Keall, who acted for Mr Manda, had initially agreed to act on a pro bono basis but had recorded costs incurred in preparing for the hearing. However, Mr Keall had assured Mr Manda that he would not charge him in the event that Mr Karmarkar's appeal was upheld. The court held that it could not award costs in favour of Mr Manda and against Mr Karmarkar as Mr Manda had not incurred costs and had not been invoiced for any costs in relation to this proceeding. However, if Mr Manda had incurred any disbursements in defending Mr Karmarkar's claim and subsequent appeals, they were recoverable from Mr Karmarkar.

Orders