Karmarkar v Pendem - [2018] NZHC 1110

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-2380

[2018] NZHC 1110

BETWEEN
MADHAV HARI KARMARKAR

Appellant

AND

S PENDEM & ORS

Respondents

Hearing: On the papers

Judgment:

18 May 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 18 May 2018 at 3.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Copy to:
The Appellant (by email)
The Respondents (by email)

KARMARKAR v S PENDEM & ORS [2018] NZHC 1110 [18 May 2018]

Introduction

[1] Mr Karmarkar has applied for leave to appeal to the Court of Appeal against a judgment delivered on 17 April 20181 in which I upheld decisions of the Tenancy Tribunal and the District Court2 holding that the tenancy for the residential establishment that Mr Karmarkar operates at 37a Hayr Road, Three Kings, Auckland 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] On 8 May 2018, I issued a Minute advising that I proposed to make a decision on the papers and would issue my judgment in due course. I did not hear further from Mr Karmarkar.

Nature of appeal

[3] Mr Karmarkar’s appeal to the High Court was an appeal on a point of law under s 119 of the Act. It raised the general question of what constitutes a boarding house tenancy for the purposes of the Act. This question appears not to have been considered directly by the High Court before.

[4]Under s 120 of the Act:

(1)Any party to an appeal under section 119 may, with the leave of the High Court or (if that leave is refused) with special leave of the Court of Appeal, appeal to the Court of Appeal against the determination of the High Court.

(2)An application to the High Court for leave to appeal to the Court of Appeal under this section shall be brought, in accordance with the rules of court, within 15 working days after the determination of the High Court, or within such further time as the High Court may allow; and the High Court may grant leave accordingly if, in its opinion, the appeal involves a question of law that, because of its general or public importance or for any other reasons, ought to be submitted to the Court of Appeal for decision.

1 Karmarkar v Pendem [2018] NZHC 693
2 Karmarkar v Pendem [2017] NZDC 22771

[5] Mr Karmarkar filed his application for leave on 21 April 2018 within the timeframe set out in s120(2).

[6] Mr Karmarkar has not been legally represented at any stage of this proceeding and prepared the application for leave to appeal himself. The grounds in the application are…

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 Pendem

Details

AGLC: Karmarkar v Pendem [2018] NZHC 1110
Case: [2018] NZHC 1110
Decision Date: 18 May 2018

CaseChat Overview and Summary

Madhav Hari Karmarkar sought leave to appeal against a decision of the High Court, which upheld the earlier decisions of the Tenancy Tribunal and the District Court, declaring that his tenancy was a boarding house tenancy under the Residential Tenancies Act 1986. The Court of Appeal was asked to decide whether the tenancy was a fixed-term residential tenancy. The appellant argued that the tenancy agreement should be interpreted in light of the parties’ intentions. However, the Court of Appeal rejected the argument and held that the tenancy was a boarding house tenancy under Part 2A of the Act. The Court of Appeal found that the amount of arrears of just under $11,000 did not warrant its attention, and the question of what constitutes a boarding house tenancy under Part 2A of the Act had been answered the same way in each tribunal. The Court of Appeal also found that the appellant’s appeal did not challenge the Court’s analysis of Part 2A of the Act but rather challenged the application of that analysis to the particular facts of his tenancy. The Court of Appeal concluded that the appeal did not involve a question of law that, because of its general or public importance or for any other reasons, ought to be submitted to the Court of Appeal for decision. Therefore, the application for leave to appeal to the Court of Appeal was denied.
The Court of Appeal held that the appellant’s appeal did not involve a question of law that, because of its general or public importance or for any other reasons, ought to be submitted to the Court of Appeal for decision. The Court of Appeal found that the amount of arrears of just under $11,000 did not warrant its attention, and the question of what constitutes a boarding house tenancy under Part 2A of the Act had been answered the same way in each tribunal. The Court of Appeal also found that the appellant’s appeal did not challenge the Court’s analysis of Part 2A of the Act but rather challenged the application of that analysis to the particular facts of his tenancy. The Court of Appeal concluded that the appeal did not involve a question of law that, because of its general or public importance or for any other reasons, ought to be submitted to the Court of Appeal for decision. Therefore, the application for leave to appeal to the Court of Appeal was denied.

Orders