Linklater v Dickison
[2017] NZHC 2813
•16 November 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-000457 [2017] NZHC 2813
BETWEEN SUSAN MARIE LINKLATER Appellant
ANDROSS CAMERON DICKISON First Respondent
ANDRILEY DAVID CORNEY Second Respondent
ANDTHOMAS DIGBY LOURIE Third Respondent
ANDSIMON NICHOLAS ARTHUR STENT Fourth Respondent
ANDJAMES DANIEL RUSSELL ELLIS Fifth Respondent
ANDSAMUEL PAUL NEAME Sixth Respondent
ANDNICHOLAS GEORGE GRICE Seventh Respondent
Hearing: 4 October 2017
Appearances: Appellant in person
G P Tyrrell for the First, Third, Fourth, Sixth and Seventh
Respondents
No appearance for the Second and Fifth Respondents
Judgment: 16 November 2017
JUDGMENT OF NATION J
LINKLATER v DICKISON [2017] NZHC 2813 [16 November 2017]
[1] Susan Linklater (Ms Linklater) owns a residential property in Christchurch. In recent years, it has been let to young tenants including students. It was rented to the respondents for a year from 18 February 2016. By agreement, the lease finished early after there had been damage to the property.
[2] Ms Linklater made a claim with her insurer and received a settlement for some of the damage.
[3] Ms Linklater then made a claim to the Tenancy Tribunal. The tenants agreed to an order requiring them to pay $163.66 for the cost of painting over some graffiti, painting over broken brackets on a down-pipe and replacing a bent curtain track. She was unsuccessful on a claim to recover the excess of $1,100 on what was treated by her insurer as two separate insurance claims in respect of damage to carpets in two separate rooms where the replacement cost of carpet in those rooms had been
$2,557. She was unsuccessful in her claim for $1,200 for the cost of replacing carpets in two bedrooms.
[4] Her claim for $1,195 for some other damage was dismissed because part of it was due to fair wear and tear, some marks were caused by a sewerage pipe bursting and leaking through the ceiling. Her claim for lost rental, through the early termination of the lease, was also dismissed because the termination had been by agreement.
[5] Ms Linklater was awarded exemplary damages of $100 for alterations that were deliberately made to a lock and $2,279.53 for certain other painting, repair and cleaning costs.
[6] The awards in her favour were all to be paid by deduction from the bond of
$3,960 paid by the tenants.
[7] Ms Linklater appealed the Tribunal’s decision to the District Court. On that appeal, she specifically claimed she should have been awarded compensation of:
• $1,100 for the insurance excess she had to pay in relation to two damaged carpets;
• $1,200 as the cost of replacement of other carpets in two bedrooms;
• for damaged hearth tiles; and
• an increase in the award of $100 exemplary damages in respect of the lock.
[8] Judge Gilbert dealt with the appeal by way of rehearing on the basis of the record of the oral evidence given before the Tribunal. He dismissed the appeal with regard to each of these claims.1
[9] Judge Gilbert held the Tribunal was correct to rule that Ms Linklater was not entitled to recover either the excess insurance or the cost of further carpets because of s 269(1)(a) of the Property Law Act 2007 and the Court of Appeal decision in Holler v Osaki.2 He dismissed the claim for damage caused to hearth tiles holding the Tribunal was entitled to accept the evidence of a tenant who was a builder that the tiles had cracked because they had been laid, at least in part, on a timber floor with some flexibility in it. The Judge also noted that, in the hearing before him, Ms Linklater accepted that the tiles may have had hairline cracks prior to the tenancy and the original job might not have been up to scratch.
[10] The Judge held the award of exemplary damages in respect of the lock to a door had been discretionary. He considered the Tribunal had considered relevant criteria and arrived at a figure that was within bounds. He chose not to interfere with it.
[11] Ms Linklater filed a notice of appeal, specifically in relation to the $1,100 insurance excess and the compensation claimed for other carpets.
[12] At an initial call of the matter, counsel entered an appearance for one of the respondents. A solicitor in Taupo subsequently entered an appearance for five of the tenants. They were represented at the hearing of the appeal by counsel, Mr Tyrrell.
There was no appearance for the tenants, R D Corney and J D R Ellis. Ms Linklater
1 Linklater v Dickison [2017] NZDC 5751.
2 Holler v Osaki [2016] NZCA 130, [2016] 2 NZLR 811 (CA).
swore and filed affidavits as to the steps she had taken to advise them of the appeal and the initial case management conference. Those efforts, including contact with their next of kin, as provided by the tenant. In both instances, those people declined to provide an address. Ms Linklater had also sent copies of relevant Court documents, including the notice of appeal to addresses those tenants had earlier provided to her.
[13] Prior to the hearing of the appeal, Mr Tyrrell filed written submissions for the tenants. The arguments he advanced were effectively for all tenants. Against that background, at the commencement of the appeal hearing, I directed the appeal could proceed without appearances from Mr Corney and Mr Ellis.
Jurisdiction
[14] Section 119(1) of the Residential Tenancies Act 1986 states:
Any party to an appeal under section 117 who is dissatisfied with the decision of the District Court Judge as being erroneous in point of law may appeal to the High Court on that question of law.
[15] Ms Linklater filed a memorandum for the first case management conference, summarising the arguments she wished to advance. These were, what she described as, detailed points of law, in a document dated 6 September 2017. She developed these arguments in careful submissions before me at the hearing on 4 October 2017.
[16] On the basis of those documents and submissions, I consider Ms Linklater’s
suggested errors of law were as follows.
(a) In Holler v Osaki, the Court of Appeal ruled that residential tenants are immune from a claim by the lessor where the rental property suffers loss of damage caused carelessly by the tenant or the tenant’s guests where the lessor is insured for that damage. Ms Linklater submits:
(i)the District Court Judge was in error in holding that the judgment of the Court of Appeal in Holler v Osaki should apply where damage was caused by the recklessness of tenants
and/or when the tenants, in breach of their obligations under the Tenancy Agreement, had made it difficult for the landlord to pursue an insurance claim through not notifying the landlord of damage which had been done;
(ii)when the tenants, in breach of their lease, had intentionally either smoked inside the premises or permitted others to do so causing damage and the tenants had not shown they took reasonably steps to prevent such people from being on the premises; and
(iii) where damage was caused not by a single event as in Holler v
Osaki but on unspecified dates and over an extended period;
(b)the District Court Judge was in error in holding that the landlord was insured to the extent of the insurance excess for the damage which had been done to the carpets; and
(c) part A of the PLA is subject to provisions of the Residential Tenancies Act. Section 85(2) Residential Tenancies Act requires the Tenancy Tribunal to determine disputes “according to the general principles of law relating to the matter and the substantial merits and justice of the case” but is “not to be bound to give effect to strict legal rights or obligations or to legal forms or technicalities”. The claims should thus have been determined according to the substantial merits and justice of the case, i.e. what was fair, so that the Tribunal should not have been bound by the Court of Appeal’s judgment in Holler v Osaki.
[17] In his submissions for the tenants, Mr Tyrrell stressed that the High Court can consider appeals only as to claimed errors of law and this Court cannot revisit factual findings that had been made in the District Court. He argued that, in this case, there were consistent findings of both the District Court and the Tribunal that the damage to the carpets was not intentional. He submitted the Court did not have jurisdiction to revisit those findings. He submitted the District Court Judge had been right in
upholding the Tribunal’s determination that, on an application of the Court of Appeal’s judgment in Holler v Osaki, the tenants were immune from claim. He presented further arguments supporting that primary submission.
Discussion
[18] With regard to the claim for the insurance excess on two carpets, the Tenancy
Tribunal said in its decision:
The landlord sought the excess it had to pay its insurer in respect of its claim for cover for damage done to the lounge and dining room carpets during the tenancy. The lounge and dining room carpets were heavily stained, much of which was probably caused carelessly during two large parties the tenants held at the premises.
[19] The Tribunal said the Holler v Osaki decision meant a lessor could not recover loss from the tenant for damage caused by carelessness. The lessor had cover for the sort of damage the tenants or others at the premises with their permission had caused in respect of the carpets. The Tribunal determined the damage to the carpets had been caused by the carelessness of the tenants or others who were at the premises with the tenants’ permission.
[20] I have also read the transcript of evidence that was before the Tribunal. At the beginning of the hearing, Ms Linklater referred to the claim for the insurance excess for carpet damage done to two rooms. She said to the Tribunal that it was a breach of the tenancy agreement to smoke. She said that, on a continuum between careless and intentional, she put what must have happened with the burns to the carpet at “the extreme end of carelessness”. She referred to there being a couple of cigarette burns in each of two bedrooms but said she was dealing with that damage as a separate issue. The only explanation Ms Linklater gave for treating that damage as a separate issue was that she had decided not to make an insurance claim for that damage because the cost of replacing the carpets was probably less than the excess involved. There did not appear to have been any attempt before the Tribunal to establish that carpet damage in the bedrooms had been intentional or that the tenants’ intentional conduct had made it impossible for Ms Linklater to obtain insurance for the damage done to the carpets.
[21] In his decision, Judge Gilbert said that several of the carpets in the house were carelessly damaged by the respondents or their guests during parties where people smoked inside. As a result, replacement was required. Two carpets in general living areas were replaced. This was covered by the lessor’s insurance subject to payment of an excess of $1,100. Judge Gilbert held that Ms Linklater was not entitled to recover that excess from the tenants because to do so would have required them “to make good” the damage to the carpets and s 269(1) PLA prevented her from making such a claim.
[22] The Judge separately considered issues over compensation for carpets Ms
Linklater did not claim for under her insurance policy. As to those, he said:
There were two carpets that were damaged by cigarette burns that Ms Linklater did not claim under her insurance policy. That was because the combined premium was $1,100 but the total cost of replacement was only
$1,200. In those circumstances, she did not think it expedient to claim, a decision which is understandable.
The reality is that these carpets were covered by insurance. Whether or not Ms Linklater chose to lodge a claim was a matter for her. The fact that she did not cannot be visited upon the tenants.
[23] Holler v Osaki was concerned with the lease of a residence to a family. Mrs Osaki left a pot of oil on high heat and unattended for five minutes. Fire broke out, causing substantial damage to the house. The Court of Appeal upheld judgments of lower courts that ss 268 and 269 of the Property Law Act (PLA) applied to bar the lessor’s claim against the tenants for the damage caused by the fire. The Court of Appeal in Holler v Osaki answered the first of two questions of law which were before it as follows:3
Question 1: Whether residential tenants are immune from a claim by the landlord where the rental property suffers loss of damage caused intentionally or carelessly by the tenant or the tenant’s guests?
Answer: Yes, in terms of loss or damage caused carelessly, to the extent provided in ss 268 and 269 Property Law Act 2007 but no, in terms of loss or damage caused intentionally.
3 Holler v Osaki, above n 2, at [58].
[24] Sections 268 and 269 PLA provide:
268 Application of sections 269 and 270
(1) Sections 269 and 270 apply if, on or after 1 January 2008, leased premises, or the whole or any part of the land on which the leased premises are situated, are destroyed or damaged by 1 or more of the following events:
(a) fire, flood, explosion, lightning, storm, earthquake, or volcanic activity:
(b) the occurrence of any other peril against the risk of which the lessor is insured or has covenanted with the lessee to be insured.
(2) Section 269 applies even though an event that gives rise to the destruction or damage is caused or contributed to by the negligence of the lessee or the lessee’s agent.
(3) In this section and sections 269 and 270, lessee’s agent means a person
for whose acts or omissions the lessee is responsible.
269 Exoneration of lessee if lessor is insured
(1) If this section applies, the lessor must not require the lessee—
(a) to meet the cost of making good the destruction or damage; or
(b) to indemnify the lessor against the cost of making good the destruction or damage; or
(c) to pay damages in respect of the destruction or damage.
(2) If this section applies, the lessor must indemnify the lessee against the cost of carrying out any works to make good the destruction or damage if the lessee is obliged by the terms of any agreement to carry out those works.
(3) Subsection (1) does not excuse the lessee from any liability to which the lessee would otherwise be subject, and the lessor does not have to indemnify the lessee under subsection (2), if, and to the extent that,—
(a) the destruction or damage was intentionally done or caused by the
lessee or the lessee’s agent; or
(b) the destruction or damage was the result of an act or omission by
the lessee or the lessee’s agent that—
(i) occurred on or about the leased premises or on or about the whole or any part of the land on which the premises are situated; and
(ii) constitutes an imprisonable offence; or
(c) any insurance moneys that would otherwise have been payable to the lessor for the destruction or damage are irrecoverable because of an act or omission of the lessee or the lessee’s agent.
[25] As the Court of Appeal identified in their judgment, those provisions of the
PLA had their genesis in the Law Commission’s recognition of:4
The economic reality that if the landlord has a property it wishes to be insured, to do so it needs to pay premiums and the source of the money it uses to pay those premiums is the rent obtained from the tenant.
[26] The Commission had identified that there were issues, misunderstandings and uncertainty over whether tenants could benefit from a lessor’s insurance. The Court of Appeal noted:5
The Commission’s tentative proposal was that the new PLA should contain a section providing that where leased premises were destroyed or damaged by fire, flood or any other peril against which the lessor is insured or has covenanted with the lessee to insure, the lessor should not be entitled to require the lessee to make good the destruction or damage or to indemnify or pay damages to the lessor in respect of the destruction or damage. This would apply even if the damage is caused by the default of the tenant, but not in the case of wilful damage by the tenant or other conduct by the tenant which rendered insurance moneys irrecoverable.
[27] The Court of Appeal considered that, in enacting ss 268 and 269 PLA, Parliament had accepted the policy reasons articulated by the Commission as to why the exoneration provisions were necessary and that those reasons were particularly pertinent in the area of residential tenancies.
[28] In Holler v Osaki, the Court of Appeal thus found that, through enacting ss
268 and 269, Parliament made it clear that, with a residential tenancy, tenants would not be liable for the cost of repairing destruction or damage to property for which the lessor was insured unless the damage had occurred in the specific circumstances referred to in s 269(3)(a)-(c). Relevant to the case here, for that exception to apply, the damage had to have been “intentionally done or caused by the lessee or the
lessee’s agent”.
4 Holler v Osaki, above n 2, at [35]-[36] referring to Law Commission The Property Law Act
1952: a discussion paper (NZLC pp 16) 1991 at [1].
5 At [39].
[29] The Court of Appeal said this meant the tenants were immune from the claim by the lessor for loss or damage caused carelessly. There was no qualification as to whether that carelessness had to be less than recklessness, or had to have occurred on one brief occasion rather than from a continuing course of action or repeated occurrences.
[30] In insurance policies, there are often clauses which attempt to exclude the insurer’s liability where an insured has been careless or negligent. In the insurance context, courts have held such a clause will be effective only where an insurer can prove an insured has been reckless, grossly irresponsible or grossly careless. In the PLA, Parliament has put the threshold for denying protection for the tenant even higher, denying protection only where their acts have been intentional.6
[31] Ms Linklater referred to a decision of Judge Smith in the District Court in Tekoa Trust v Stewart.7 In that case, the Tribunal decided tenants had not intentionally damaged a carpet. A tenant had breached the agreement by allowing a dog onto the property and it had urinated on the carpet. The Tribunal held the lessor had not established that the tenant had intended to damage the carpet or that the other circumstances referred to in s 269(3) applied. Judge Smith decided that animal urine had affected carpets in all carpeted areas, that after a dog had urinated on the carpet once or possibly twice, it must have urinated on the carpet again on other occasions. She held that continuing to allow the dog into the premises was a deliberate intentional act of the tenant.
[32] The Judge said initially that letting the dog into the premises was an intentional act in breach of the tenancy agreement but “no loss was caused per se by the breach of that clause”. A little later, the Judge said that it was a situation where “the tenant would have known that the dog(s) would continue to urinate and that the damage was virtually certain to result in the way it did by allowing the dogs to
continually enter the premises”. Applying a definition of “intentional”, used by the
6 Cee Bee Marine Ltd v Lombard Insurance Co Ltd [1990] 2 NZLR 1 (CA) at [12]; MMI Insurance (New Zealand) Ltd v P D Davies Ltd HC Napier AP1/98; Kelly v National Insurance Co of NZ Ltd [1995] 1 NZLR 641.
7 Tekoa Trust v Stewart [2016] NZDC 25578.
authors of Brooker in Summary Offences in relation to offences under that Act, she held the damage done by the dog was intentional.
[33] I question whether that was a proper basis on which to find the damage was caused “intentionally” by the tenant, as that term is used in s 269(3)(a) PLA, and in the context of residential tenancies and in consideration of the lessors and tenants’ rights, obligations or protection where there is insurance and ss 268 and 269 PLA are relevant.
[34] It is not, however, necessary for me to decide what the test, as to whether damage has been caused “intentionally”, should be. It was not suggested at the hearing before the Tribunal that the damage done to the carpets was caused intentionally by the tenants on the basis referred to by Judge Smith. It was not because of the tenants breaching a term of the lease that Ms Linklater did not claim insurance for the cost of replacing carpet in two rooms. The conclusion of both the Tribunal and Judge Gilbert in the District Court was that the damage resulted from the carelessness of the tenants or other people who came to their address. There is nothing in Judge Gilbert’s decision to indicate he made any error of law in reaching that conclusion. To the extent his conclusion involved a factual determination, his decision cannot be the subject of an appeal.
[35] It follows that there was no error of law in Judge Gilbert agreeing with the Tribunal that s 269(1)(a) PLA prohibited a lessor from requiring tenants to meet the cost of making good damage where that damage was insured, although that damage was caused carelessly by the tenants or others at the premises during parties where people smoked inside, regardless of whether that happened on more than one occasion or was in breach of a term of the lease. There were no errors of law in the ways I summarised at [16(a)(i)] to [16(a)(iii)] above that Ms Linklater had argued.
[36] Ms Linklater also argued that s 269 should be interpreted and applied so as to permit the lessor to recover the excess she had to pay in having the damage made good by the insurer. She argued that damage was not insured to the extent of the excess.
[37] As the Court of Appeal said in Holler v Osaki, the meaning of legislation must be ascertained from its text and in light of its purpose.8 Section 268(1) says that the protection for the tenants, as provided for in s 269, will apply where the leased premises are damaged by “the occurrence of any other peril against the risk of which the lessor is insured or has covenanted with the lessee to be insured”.
[38] Here, the lessor was insured for the damage done to the carpets. She made an insurance claim for such damage in respect of the carpets in two rooms. She chose not to make a claim for damage done to carpet in other rooms because the cost of replacing that carpet was less than the excess that would have applied but that damage was still damage for which she was insured.
[39] Section 269(1) plainly means that s 269 will apply once and if it is clear the lessor is insured for the damage that occurred or has covenanted with the tenant to be insured for that damage. The protection for the tenant is not limited to the extent of the indemnity or cover which the lessor is entitled to under her insurance policy. It is the fact there is such insurance, not the extent of it, which protects the tenant. The excess payable by a lessor goes to the extent of the cover or indemnity which is available, not to whether the property is insured for the damage that occurred.
[40] It is inherent in ss 268 and 269 that it will be the lessor, who insures the property, is responsible for ensuring the cover is adequate and carries the risk of it not being so. If ss 268 and 269 were to be applied in the way Ms Linklater argues for, an insurer would effectively be able to deny the tenants the protection provided by s 269 and shift the ultimate risk and responsibility for insurance to the tenants by increasing the excess applicable or by limiting the extent of indemnity available through a reduced fixed sum policy. Such an interpretation would not be consistent with the purpose of ss 268 and 269.
[41] There was no error in Judge Gilbert holding that, to require a tenant to meet the costs of the excess, would be to require the tenants to “meet the costs of making good the … damage”, damage for which the lessor was insured and which she could
not recover from them, applying s 269(1).
8 Holler v Osaki, above n 2, at [18], citing Interpretation Act 1999 s 5(1).
[42] Ms Linklater argues that, with the interpretation adopted by Judge Gilbert and the application of s 269, the PLA has been wrongly allowed to trump the Residential Tenancies Act 1986 (RTA) and, in particular, s 85(2) which states:
The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
[43] Ms Linklater argues the tenants here were in breach of a specific clause in their tenancy in smoking within the premises in either themselves or allowing people who came onto the property to smoke within the premises. She said that, pursuant to s 77(2)(n), the Tribunal can:
… order … the tenant under any tenancy agreement to which this Act applies to pay to the other party such sum by way of damages or compensation as the Tribunal shall assess in respect of the breach of any express or implied provision of the tenancy agreement or any provision of this Act.
[44] She also referred to s 8(4) PLA which states “[i]f a provision of this Act is inconsistent with a provision in another enactment, the provision in the other enactment prevails”.
[45] Although Ms Linklater did not refer to these provisions, of potential relevance could have been s 142 of the RTA, relied upon by the lessor in Holler v Osaki:
142 Effect of Property Law Act 2007
(1) Nothing in Part 4 of the Property Law Act 2007 applies to a tenancy to which this Act applies.
(2) However, the Tribunal, in exercising its jurisdiction in accordance with section 85 of this Act, may look to Part 4 of the Property Law Act 2007 as a source of the general principles of law relating to a matter provided for in that Part (which relates to leases of land).
[46] In Holler v Osaki, the Court of Appeal carefully considered s 142. It also referred to s 8(4) and s 85 RTA. It referred to provisions of the RTA which bear upon the parties’ obligations where a dwelling is damaged or destroyed during the course of a residential tenancy. Although they were dealing with a situation where the damage had been caused by fire, the provisions they discussed refer to damage
generally, for example, s 40(2)(a) which provides that a tenant must not intentionally or carelessly damage, or permit any other person to damage the premises. That section also provides that where damage, other than fair wear and tear occurs, it is for the tenant to prove it did not occur in breach of s 40(2)(a).
[47] The Court of Appeal however, referring to ss 39(1), 40(2)(a), 41(1), 45 and
55, stated:9
In our view none of these provisions are inconsistent with the exoneration provisions so as to bring into play s 8(4) of the PLA. Their effect can be summarised as follows. It is a breach of the tenant’s statutory duty to intentionally or negligently cause damage (including by fire) to the premises. The tenant is “responsible” for such damage caused by them or anyone they allow on the premises. The landlord can apply for an order terminating the lease on the basis of that breach. Although the RTA absolves the landlord of an obligation to repair damage caused by a tenant in breach of ss 40 and 41 or to compensate the tenant for that damage, notably the RTA does not impose a mirror obligation upon the tenant to make good the damage or compensate the landlord.
[48] Later on, the Court of Appeal referred to ss 8 and part 4 of the PLA and ss 40,
41, 85 and 142 of the RTA. It then concluded that the:10
Tribunal is entitled to have resort to provisions in pt 4 of the PLA if they create general principles relevant to an issue before the Tribunal and are not in conflict with the provisions of the RTA. We also consider that when regard is had to the content of pt 4, the exoneration provisions are very good, if not the best candidates in pt 4 for “general principles”.
[49] The Court of Appeal concluded:11
… that the text, policy and legislative history of s 142 of the RTA and the exoneration provisions in the PLA support the interpretation contended for by the respondents. The Tribunal is entitled to have resort to provisions in pt
4 of the PLA if they create general principles relevant to an issue before the
Tribunal and are not in conflict with the provisions of the RTA. The general principles to which the Tribunal may have resort include the exoneration provisions contained in ss 268 and 269 of the PLA.
9 Holler v Osaki, above n 2, at [27].
10 At [30].
11 At [57].
[50] Although that statement ends with the Court of Appeal saying “the general principles to which the Tribunal may have resort include the exoneration provisions contained in ss 268 and 269 of the PLA”, that section is followed immediately by the Court of Appeal stating that, as a result, residential tenants are immune from a claim by the lessor where the rental property suffers loss or damage caused carelessly by the tenant or the tenant’s guests to the extent provided for in ss 268 and 269 of the PLA.
[51] The Court of Appeal has thus held that the obligation on the Tribunal to determine disputes according to the general principles of the law relating to the matter and the substantial merits and justice of the case require the Tribunal to recognise the protection that is available to tenants through ss 268 and 269 PLA. The fundamental obligations on a lessor and the protection for a tenant expressly provided for in ss 268 and 269 are not the sort of “strict legal rights or obligations, legal forms or technicalities” which s 85 RTA says a Tribunal need not give effect to.
[52] As happened in this case, some damage or neglect of the premises by tenants may give rise to costs which lessors are entitled to recover from them, often from the bond the tenants provide. The damage or neglect may entitle the lessor to immediately apply to the Tenancy Tribunal for an order terminating the lease.12
Where there is damage for which there is insurance, the lessor will be able to claim under their insurance policy. The costs of that insurance, including a potential excess, will be costs that a lessor has to consider when assessing the risks and returns associated with an investment in a residential rental property, and the appropriate rent for that property. That is what results from ss 268 and 269 PLA being interpreted in the way the Court of Appeal, in Holler v Osaki, has said is appropriate and what Parliament intended.
Result
[53] Ms Linklater has not established that Judge Gilbert in the District Court made
any error of law in the decision he reached dismissing Ms Linklater’s appeal from
the decision of the Tenancy Tribunal. Her appeal to this Court is dismissed.
12 Residential Tenancies Act 1986, s 55(2).
[54] The tenants who were represented by counsel at the hearing are entitled to costs on a 2B basis. If there is no agreement as to those costs, counsel for the respondents is to file a memorandum seeking the costs they consider appropriate within 21 days. Ms Linklater is to file any memorandum in opposition within 14 days of receiving the respondents’ memorandum. The memoranda are to be no longer than three pages. I will deal with costs on those papers.
Solicitors:
Cargill Stent Law Limited, Taupo
Weston Ward & Lascelles
Copy to:
S M Linklater, Appellant.