Parbhu v Want - [2018] NZHC 2079

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 2079

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

Hearing: 30 July 2018

Appearances:

R J Thompson for the Appellant C J Nicholls for the Respondent

Judgment:

15 August 2018

JUDGMENT OF COOKE J

Table of Contents

Introduction [1]

Anderson v FM Custodians Ltd [7]

Arguments on appeal [12]

What is the correct interpretation and application of the Act? [20]

(a)Text  [23]
(b)Purpose  [29]
(c)Scheme  [37]

Relevance of section 8 [41]

Does s 137 nevertheless apply? [45]

Other arguments advanced on appeal [48]

Status of Anderson v FM Custodians Ltd [54]

Summary and result [57]

PARBHU v WANT [2018] NZHC 2079 [15 August 2018]

Introduction

[1] Mr Parbhu and Ms Patel are the trustees of the Impala Trust (the Trustees). They own a commercial building on Eastern Hutt Road, Taita, Lower Hutt. Some 16– 17 years ago an application was made to establish living quarters on the premises for an on-site caretaker. The application was granted on 16 November 2001 subject to conditions, including the condition that “the living quarters are to be used as a caretaker’s residence only”. The reason given for granting the application was to “allow the applicant as owner and manager … to stay on-site and manage the business without having to employ night time security supervisors”.

[2] On 19 November 2015, the Trustees entered a fixed term tenancy with the respondent, Ms Want. Ms Want is not employed by the Trustees as a caretaker. The occupancy was accordingly inconsistent with the resource consent condition. The fixed term tenancy became a periodic tenancy from 1 May 2016. The factual circumstances that led to the parties entering into the tenancy agreement were described in the following way by the Tenancy Tribunal adjudicator:1
The Landlord rented the premises to the Tenant with the knowledge that doing so would not comply with the restricted resource consent for the premises. However, Mr Parbhu genuinely felt the limited consent was a mere technicality and believed Level 2 to be a quality residence for any resident, himself included, and appropriate for the tenant to live there. That the initial application to the Tribunal was rent arrears suggests the Trust genuinely believed the tenancy was a lawful tenancy. The Trust did not deliberately set out to deceive the Tenant nor breach the Act and Mr Parbhu had no understanding of the potential detriment the Tenant may have suffered by living in a premises that did not have consent for that purpose.

[3] Both parties subsequently made claims before the Tenancy Tribunal concerning the tenancy. When the Tribunal first addressed the position in its decision of 17 November 2016, it made an order granting the Trustees possession and terminating the tenancy. The remainder of the applications…

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 Parbhu v Want

Details

AGLC: Parbhu v Want [2018] NZHC 2079
Case: [2018] NZHC 2079
Decision Date: 15 August 2018

CaseChat Overview and Summary

Parbhu v Want was an appeal brought by Sunil Dennis Parbhu and Kumund Patel, the trustees of the Impala Trust, against a decision of the Tenancy Tribunal that had found their tenancy with Nicole Want to be unlawful. The High Court was asked to determine whether the Tenancy Tribunal had jurisdiction to hear the case and whether it had erred in law in ordering the trustees to pay Ms Want $14,000 in restitution of rent and bond. The Court found that the Tenancy Tribunal had jurisdiction to hear the case, and that the order made by the Tribunal under s 137 was set aside. The Court held that the Act applies to tenancies for residential occupation in circumstances where that tenancy involves inconsistency or contravention of other legal requirements, or inconsistency or contravention of the requirements of the Act itself. In the present case, the Tenancy Tribunal had jurisdiction to deal with all of the issues that the parties had raised. The proceeding was remitted to the Tribunal for consideration of the undetermined claims before the Tribunal in light of this judgment.

Orders