Parbhu v Want

[2018] NZHC 2411

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-184

[2018] NZHC 2411

UNDER THE

Residential Tenancies Act 1986

IN THE MATTER OF

an appeal from the decision of the District Court dated 4 February 2018

BETWEEN

SUNIL DENNIS PARBHU AND KUMUD PATEL

Appellants

AND

NICOLE WANT

Respondent

Teleconference:	12 September 2018
Counsel:	R J Thompson for the Appellant C J Nicholls for the Respondent
Judgment:	13 September 2018

JUDGMENT OF COOKE J

(Leave to appeal to Court of Appeal)

[1]    The respondent, Ms Want applies for special leave to appeal my decision in this proceeding to the Court of Appeal. 1 Under s 120 of the Residential Tenancies Act 1986 such leave can be granted if the appeal involves questions of law that because of their general or public importance ought to be submitted to the Court of Appeal for decision.

[2]    I accept the two questions of law formulated in Ms Want’s application dated 3 September 2018 duly meet the requirements for leave, as the appellants accept. There are now two inconsistent High Court decisions on the correct interpretation of the

1      Parbu v Want [2018] NZHC 2079.

PARBHU v WANT [2018] NZHC 2411 [13 September 2018]

provisions of the Residential Tenancies Act. There have been several decisions of the Tenancy Tribunal concerning the matters to which the interpretation issues relate, so the correct interpretation of the provisions is a matter of wider interest.2 The issues are properly addressed by the Court of Appeal. I accordingly grant leave to appeal.

[3]    The appellants have also sought that I make  an order as contemplated by      s 45(5) of the Legal Services Act 2011. Under s 45 costs can only be awarded against a legal aided person if there are exceptional circumstances, and there are no such circumstances in the present case. An order can then be made by the Court specifying what order of costs would have been made against the legally aided person if s 45 had not affected that person’s liability.

[4]    I accept that such an order should be made, and agree with counsel for the appellants that but for s 45 costs would have been awarded against the respondent on a 2B basis in the amount set out in the schedule to his memorandum of 12 September 2018, totalling $14,495. I order accordingly.

Cooke J

Solicitors:

Loughlin McGuire & Roud Lawyers, Auckland for the Appellants

2      See Parbhu v Want, at [11], footnotes 9 and 10.