Karmarkar v Pendem - [2018] NZHC 693

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-2380

[2018] NZHC 693

BETWEEN
MADHAV HARI KARMARKAR

Appellant

AND

S PANDEM AND OTHERS

Respondents

Hearing: 20 March 2018

Appearances:

M H Karmarkar, in person, Appellant No appearance by Respondents

Judgment:

17 April 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by Justice van Bohemen On 17 April 2018 at 3pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

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

KARMARKAR v PANDEM AND OTHERS [2018] NZHC 693 [17 April 2018]

Introduction

[1] Madhav Hari Karmarkar appeals a decision of Judge A A Sinclair in the Auckland District Court1 upholding a decision of the Tenancy Tribunal that the tenancy agreement for the residential establishment that Mr Karmarkar operates is a boarding house tenancy under the Residential Tenancies Act 1986 (the Act). The effect of this decision is that Mr Karmarkar cannot recover monies he says are owed to him for non-payment of rent. 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] Mr Karmarkar represented himself in person before the High Court, as he had before the District Court. The respondents – Mr Karmarkar’s tenants – did not attend the High Court hearing. This is probably because, although the proceeding was brought against all the tenants listed on the tenancy agreement with Mr Karmarkar, Mr Karmarkar is seeking to recover the unpaid rent only from those tenants who have departed Mr Karmarkar’s establishment and have stopped paying rent.

[3] This appeal raises the general question of what constitutes a boarding house tenancy in terms of Part 2A of the Act. That question appears not to have been previously considered by the High Court.2 I recognise that it would be useful for this Court to set out how this Part of the Act is to be interpreted and applied given that there has been some variation in the District Court decisions that have discussed these provisions. However, because Mr Karmarkar was self-represented and no other party took part in the hearing, I offer my interpretation with some caution and stress that a more authoritative High Court view should await a decision where the Court has had the benefit of submissions by counsel.

1 Karmarkar v Pendem [2017] NZDC 22771.
2 The decision of Goddard J in Portfolio Property Management Ltd v Clutterbuck [2013] NZHC 3165 was limited to the specific question of whether the Act allows a tenant and landlord to enter into a boarding house tenancy for a fixed term of more than 28 days.

Background

[4] Mr Karmarkar is the landlord of a property at 37a Hayr Road, Three Kings, Auckland in which he has provided residential accommodation for 16 people under an agreement signed between Mr Karmarkar as landlord and 16 named tenants.

[5] The…

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 693
Case: [2018] NZHC 693
Decision Date: 17 April 2018

CaseChat Overview and Summary

Madhav Hari Karmarkar appeals a decision of the Auckland District Court, which upheld a decision of the Tenancy Tribunal that the tenancy agreement for the residential establishment that Mr Karmarkar operates was a boarding house tenancy under the Residential Tenancies Act 1986. The effect of this decision was that Mr Karmarkar could not recover monies he says were owed to him for non-payment of rent. Karmarkar argues 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 raises the general question of what constitutes a boarding house tenancy in terms of Part 2A of the Act. Justice van Bohemen, in dismissing the appeal, found that the District Court was correct in concluding that the tenancy agreement was a boarding house tenancy under the Act. The appeal was dismissed with costs.

Orders