Want v Parbhu - [2019] NZCA 674

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA589/2018
[2019] NZCA 674

BETWEEN	NICOLE WANT Appellant
AND	SUNIL DENNIS PARBHU AND KUMUD PATEL AS TRUSTEES OF THE IMPALA TRUST Respondents

Hearing:	7 November 2019
Court:	Kós P, Miller and Brown JJ
Counsel:	C J Nicholls for Appellant R J Thompson for Respondents
Judgment:	19 December 2019 at 3 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BNo order for costs is made. Pursuant to s 45(5) of the Legal Services Act 2011, an order is made that costs for a standard appeal on a band A basis, together with usual disbursements, would otherwise have been payable.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

Mr Parbhu and Ms Patel are trustees of the Impala Trust. The Trust owns a commercial building in Lower Hutt. Eighteen years ago the Trust sought resource

consent to permit living quarters within the premises for an onsite caretaker. Consent was granted. But it was subject to a condition that the “living quarters are to be used as a caretaker’s residence only”.

In November 2015, the Trust entered into a fixed term lease of the living quarters with Ms Want. She was not employed by them as a caretaker. So the tenancy was inconsistent with the resource consent condition. The tenancy became periodic from May 2016.
Ms Want fell into arrears. The Trust took her to the Tenancy Tribunal in November 2016, seeking termination for non-payment and orders for payment of rent arrears (some $8,100) and certain other sums. But the landlord’s actions led to Ms Want making enquiries of the local authority. She then discovered the breach of resource consent condition. Asserting that there was no lawful tenancy at all, she sought an order that the rent she had paid be returned. She also sought return of her bond payment and $1,000 exemplary damages. Alternatively, were the tenancy found to be lawful, she sought abatement of rent under s 59(4) of the Residential Tenancies Act 1986 and exemplary damages in respect of various alleged breaches of the Act.[1]
[1]We refer to the Residential Tenancies Act 1986 as “the Act” hereafter.
Ms Want moved out of the premises in November 2016, between the first and second hearings in the Tribunal. In March 2017, the Tribunal concluded that the tenancy was unlawful, following the decision of the High Court in Anderson v FM Custodians Ltd.[2] Applying that decision, the only orders the Tribunal could make were those contemplated by s 137 of the Act. The Tribunal ordered restitution of the rent and bond paid by Ms Want, totalling $14,000. The Tribunal declined to award exemplary damages.
[2]Parbhu v Want TT Lower Hutt 4050364, 22 March 2017 [Tenancy Tribunal decision] at [30], citing Anderson v FM Custodians Ltd [2013] NZHC 2423, (2013) 15 NZCPR 123.
The Trust appealed to the District Court. Judge Tompkins dismissed the appeal on the basis that the District Court (and the Tribunal)…

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 Want v Parbhu

Details

AGLC: Want v Parbhu [2019] NZCA 674
Case: [2019] NZCA 674
Decision Date: 19 December 2019 at 3 pm

CaseChat Overview and Summary

The appeal was brought by Nicole Want against the decision of the Tenancy Tribunal, which had ordered her to pay the rent and bond she had paid to Sunil Dennis Parbhu and Kumund Patel, as trustees of the Impala Trust, who owned a commercial building in Lower Hutt. The Trust had leased the living quarters within the premises to Ms Want, who was not employed as a caretaker. This tenancy was inconsistent with the resource consent condition that the living quarters be used as a caretaker’s residence only. Ms Want sought an order that the rent she had paid be returned, as well as her bond payment and $1,000 exemplary damages, on the basis that the tenancy was unlawful. The Court of Appeal was required to decide whether the Court was correct to reject the reasoning in Anderson v FM Custodians Ltd and whether the Court was correct to find that s 137(1)(a) of the Act did not apply to the facts of this case. The Court concluded that the Court was correct to reject the reasoning in Anderson v FM Custodians Ltd and that the Court was correct to find that s 137(1)(a) of the Act did not apply to the facts of this case. The appeal is dismissed. No order for costs is made. Pursuant to s 45(5) of the Legal Services Act 2011, an order is made that costs for a standard appeal on a band A basis, together with usual disbursements, would otherwise have been payable.

Orders