Main v Main - [2007] NZCA 306

IN THE COURT OF APPEAL OF NEW ZEALAND

CA25/07

[2007] NZCA 306

BETWEEN

AND

MICHAEL RAYMOND MAIN Appellant

KEVIN EVAN MAIN Respondent

Hearing: 17 July 2007

Court: Hammond, Randerson and Chisholm JJ

Counsel:Appellant in Person (with P H Parete as McKenzie Friend) P Moodley for Respondent

Judgment: 23 July 2007 at 11 am

JUDGMENT OF THE COURT

A. Appeal dismissed.

B. Costs to the respondent of $5,000 together with usual disbursements.

REASONS OF THE COURT

(Given by Chisholm J)

[1] In the District Court Judge Maze entered summary judgment against the appellant for rent and outgoings totalling $17,830 plus interest and costs in relation to premises belonging to the respondent which had been occupied by the appellant. The appellant appealed to the High Court and sought leave to adduce further evidence in support of his appeal. Both his application to adduce further evidence

MAIN V MAIN CA CA25/07 [23 July 2007]

and his appeal were dismissed. Then the appellant unsuccessfully sought the leave of the High Court to appeal to this Court.

[2] Subsequently this Court granted leave for the appellant to appeal on the narrow ground whether the Residential Tenancies Act 1986 applied. The appellant and respondent were permitted to file additional affidavits concerning the use of the premises and both parties availed themselves of that opportunity.

Background

[3] Pursuant to an oral agreement the respondent leased part of the premises at 2 Queen Street, Thames, to a company of which the appellant was the sole shareholder and director. After the company was de-registered in July 2004 the appellant remained in occupation until the respondent re-entered in August 2005. He did not pay any rent or outgoings.

[4] The respondent sought summary judgment against the appellant for unpaid rent and outgoings during the period that the appellant was in possession of the premises. His application was opposed by the appellant on several grounds including the ground that the respondent had failed to comply with the Residential Tenancies Act. This allegation was rejected by the respondent who contended that the premises had been used for commercial purposes and that the Act did not apply.

[5] Having heard the application for summary judgment the District Court Judge found that the appellant had occupied the premises pursuant to a monthly tenancy in terms of s 105 of the Property Law Act 1952 for commercial purposes and that the Residential Tenancies Act did not apply. The Judge was satisfied that the second defendant did not have any arguable defence and entered summary judgment accordingly.

[6] On appeal to the High Court Cooper J concluded that the appellant had not advanced any cogent argument to show that the District Court was incorrect and dismissed the appeal accordingly.

[7] In this Court the appellant contended that the premises were used for both commercial and residential purposes with the result that s 2(3) of the Residential Tenancies Act deemed the premises to be residential premises for the purposes of that Act. He alleged that the evidence…

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.

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Details

Case: [2007] NZCA 306
Decision Date: 23 July 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Michael Raymond Main against a summary judgment entered in favour of Kevin Evan Main in the District Court. The judgment was for unpaid rent and outgoings of $17,830 plus interest and costs relating to premises leased to a company of which the appellant was the sole shareholder and director. The appellant remained in occupation of the premises after the company was de-registered and failed to pay any rent or outgoings. The respondent sought summary judgment for the unpaid amounts, which was granted by the District Court. The appellant appealed this decision to the High Court and subsequently to the Court of Appeal, arguing that the Residential Tenancies Act 1986 applied to the premises.

The Court of Appeal considered whether the Residential Tenancies Act applied to the premises, which were used for both commercial and residential purposes. The Court found that the respondent had established that the premises were let principally for commercial purposes, and therefore, the Residential Tenancies Act did not apply. The Court was satisfied that the respondent had discharged the onus of proving that the premises were let principally for purposes other than residential purposes. The Court dismissed the appeal and ordered the appellant to pay the respondent's costs of $5,000 together with usual disbursements.

Orders