Portfolio Property Management Limited v Clutterbuck - [2013] NZHC 3165

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-1047 [2013] NZHC 3165

UNDER the Residential Tenancies Act 1986

BETWEEN PORTFOLIO PROPERTY MANAGEMENT LIMITED Appellant

ANDPAUL CLUTTERBUCK Respondent

Hearing: 5 November 2013

Counsel: J D Evans for Appellant
D D Vincent for Respondent

Judgment: 29 November 2013

JUDGMENT OF GODDARD J

This judgment was delivered by me on 29 November 2013 at 3.00 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Hayman Lawyers, Wellington for Appellant
Thomas Dewar Sziranyi Letts, Lower Hutt for Respondent

PORTFOLIO PROPERTY MANAGEMENT LIMITED v CLUTTERBUCK [2013] NZHC 3165 [29 November
2013]

Introduction

[1] This is an appeal on a question of law from the District Court, stated in the following terms:

Does the Residential Tenancies Act 1986 (the Act) allow for a tenant and landlord to enter into a boarding house tenancy for a fixed term of more than
28 days?

Background

[2] Portfolio Property Management is the landlord of 48 Aurora Terrace. Mr Clutterbuck was a tenant of room 34 of that property, and entered into a written boarding house tenancy agreement that commenced on 4 August 2012 and ended on
22 February 2013. On 5 September 2012 Mr Clutterbuck gave written notice terminating the tenancy and vacated on 18 September 2012.

[3] Portfolio Property sought rent from 19 September 2012 until 22 February

2013 on the basis the tenancy was still on foot.

[4] In the Tenancy Tribunal, the claim failed. The Tribunal relied on Platinum Rentals NZ Ltd v Madden1 in which it was held that boarding house tenancies could not have a fixed term of over 28 days, and thereafter it becomes a periodic tenancy and is terminable on notice. Thus the fixed term expired on 31 August 2012, and after that Mr Clutterbuck was entitled to give notice of termination, and had complied with all the requirements under the Residential Tenancies Act 1986 as to
notice and rent.

[5] Portfolio appealed to the District Court, submitting that Platinum Rentals NZ Ltd was decided incorrectly, and that a fixed term tenancy does not turn into a periodic tenancy. Judge Bouchier considered the decision carefully, and decided it
was correct. Accordingly the appeal failed.

1 Platinum Rentals NZ Ltd v Madden DC Wellington CIV-2011-085-992, 11 September 2012.

The Residential Tenancies Act

[6] Boarding house tenancies are included in the Residential Tenancies Act 1986 (the Act), and therefore come within the Tribunal’s jurisdiction from 1 October 2010 by virtue of the Residential Tenancies Amendment Act 2010. Part 2A (ss 66A to
66Y) sets out the special provisions which apply only to boarding house tenancies.

[7] Under s 66B, a “boarding house tenancy” is one that lasts for 28 days or more (or is intended to), and under which the tenant has exclusive rights to particular sleeping quarters and shared use of facilities in a boarding house.

[8] A “boarding house” is also given a particular definition as meaning residential premises occupied, or intended to be occupied, by…

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: [2013] NZHC 3165
Decision Date: 29 November 2013

CaseChat Overview and Summary

Portfolio Property Management Limited, the landlord, sought to appeal against a decision of the District Court which held that the Residential Tenancies Act 1986 did not allow for a tenant and landlord to enter into a boarding house tenancy for a fixed term of more than 28 days. The appeal was based on the argument that the Act allowed for such an agreement. The appeal was heard by Goddard J on 29 November 2013. The key issue for the court was to determine whether the Act allowed for a boarding house tenancy to have a fixed term of more than 28 days. The court examined the arguments from both parties, with Portfolio arguing that a fixed term tenancy of more than 28 days was possible, and the respondent arguing that boarding house tenancies were a separate category of tenancy with their own rules. The court found that Parliament intended to create a new category of tenancy for boarding houses, with its own specific rules for termination. The court concluded that the Act did not allow for a tenant and landlord to enter into a boarding house tenancy for a fixed term of more than 28 days. The appeal was dismissed, and the respondent was awarded costs on a 2B basis.

The court found that the Act did not allow for a tenant and landlord to enter into a boarding house tenancy for a fixed term of more than 28 days. The appeal was dismissed, and the respondent was awarded costs on a 2B basis.

Orders