Karmarkar v Manda [2018] NZHC 2774 (25 October 2018)

Last Updated: 31 October 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-2182 [2018] NZHC 2774

BETWEEN	MADHAV HARI KARMARKAR Appellant
AND	SHASHIDHAR MANDA Respondent

Hearing:	On the papers
Counsel/Parties:	M H Karmarkar, in person, Appellant No appearance for Respondent
Judgment:	25 October 2018

JUDGMENT OF VAN BOHEMEN J (LEAVE TO APPEAL)

This judgment was delivered by me on 25 October 2018 at 3.30pm

Pursuant to Rule 11.5 of the High Court Rules

..............................

Registrar/Deputy Registrar

Solicitors/Parties: M K Karmarkar (Appellant), Auckland

Nicholls Law Ltd, Auckland

Counsel: S A Keall

KARMARKAR v MANDA [2018] NZHC 2774 [25 October 2018]

[1] Mr Karmarkar has applied for leave to appeal to the Court of Appeal against a judgment delivered on 15 August 2018¹ in which I upheld decisions of the Tenancy Tribunal and the District Court² that the tenancy for a residential establishment that Mr Karmarkar operates in Mount Roskill is a boarding house tenancy under the Residential Tenancies Act 1986 (the Act). The effect of my decision and the earlier decisions is that Mr Karmarkar cannot recover monies he says are owed to him for non-payment of rent by former tenants under an agreement that Mr Karmarkar considered was a fixed term tenancy agreement.

[2] There was a delay in the application for leave being referred to me. By minute issued on 7 September 2018, I advised the parties that unless they advised by

17 September 2018 that they wish to be heard, I proposed to decide the leave application on the papers and would issue my judgment in due course. I did not hear further from the parties.

Relevant background

[3] The legal question raised by Mr Karmarkar’s appeal is identical to that raised in earlier appeal by Mr Karmarkar with respect to a different residential establishment. I heard that appeal on 20 March 2018 and dismissed that appeal on 8 May 2018 – after the present proceeding had been filed but before it had been heard.³ Mr Karmarkar also applied for leave to appeal that decision to the Court of Appeal. I declined leave in a judgment delivered on 18 May 2018.⁴

[4] In my earlier decision, Karmarkar v Pendem, I reviewed Part 2A of the Residential Tenancies Act and relevant District Court decisions in order to determine what constitutes a boarding house tenancy under the Act. I held that it was possible to make sense of the definitions of “boarding house”, “boarding house tenancy”, and “boarding room” in s 66B of the Residential Tenancies Act by asking the following

_questions:⁵

¹ Karmarkar v Manda [2018] NZHC 2801.

² Karmarkar v Manda [2017] NZDC 20851.

³ Karmarkar v Pendem [2018] NZHC 693.

⁴ Karmarkar v Pendem [2018] NZHC 1110

⁵ Karmarkar v Pendem [2018] NZHC 693 at [34]- [35].

(a) Does the house contain one or more bedrooms along with facilities for communal use by the tenants?

(b) Is the house occupied or intended to be occupied by six or more tenants?

(c) Is the tenancy intended to, or does in fact, last for 28 days or more?

(d) Are tenants granted exclusive rights to occupy particular bedrooms, whether that occupancy is for single or shared use?

(e) Does the right to occupy a particular bedroom derive from the tenancy agreement between the individual tenant and the landlord rather than from a collective decision of the tenants?

[5] I held that if the answer to all of those questions is “yes”, the tenancy is a boarding house tenancy and the rest of the provisions of Part 2A of the Residential Tenancies Act apply.

[6] I applied the same test to the facts in the present proceeding, I was satisfied that the answer to all of those questions was “yes”. It followed that the tenancy was a boarding house tenancy and the decisions of the Tenancy Tribunal and the District Court were correct.⁶

The proposed appeal

[7] Mr Karmarkar’s appeal to the High Court is on a point of law under s 119 of the Act. It raises the general question of what constitutes a boarding house tenancy for the purposes of the Act.

[8] Under s 120 of the Act Mr Karmarkar may be granted leave by this Court to appeal to the Court of Appeal if the appeal involves a question of law that because of

⁶ Karmarkar v Manda [2018] NZHC 2801 at [11]-[12].

its general or public importance or for any other reasons ought to be submitted to the

Court of Appeal for decision:

(1) Any party to an appeal under section 119 may, with the leave of the High Court or (if that leave is refused) with special leave of the Court of Appeal, appeal to the Court of Appeal against the determination of the High Court.

(2) An application to the High Court for leave to appeal to the Court of Appeal under this section shall be brought, in accordance with the rules of court, within 15 working days after the determination of the High Court, or within such further time as the High Court may allow; and the High Court may grant leave accordingly if, in its opinion, the appeal involves a question of law that, because of its general or public importance or for any other reasons, ought to be submitted to the Court of Appeal for decision.

[9] Mr Karmarkar filed his application for leave on 22 August 2018 within the timeframe set out in s 120(2).

[10] As with the earlier proceeding, Mr Karmarkar has not been legally represented at any stage of this proceeding and prepared the application for leave to appeal himself. The grounds of appeal raised in the application are not stated precisely. Mr Karmarkar makes the general assertion that my treatment of the facts has amounted to an error of law. I take that to mean that Mr Karmarkar challenges my application of Part 2A the Act to the agreement Mr Karmarkar prepared for his tenants. Later in his notice of appeal, Mr Karmarkar identifies certain aspects of his tenancy agreement with

Mr Manda which he says are not consistent with my findings.

[11] Mr Karmarkar’s notice of appeal also makes two specific criticisms of my analysis and the application of the five questions listed at [4] above. These are:

(a) First, that the questions (a) to (c) can be answered in the affirmative in non-boarding house tenancy situations and so are “necessary but not sufficient” for determining whether the tenancy is a boarding house tenancy.

(b) Second, that the answer to questions (d) and (e), which Mr Karmarkar accepts are conditions for a boarding house tenancy, can only be determined with reference to a written agreement between the landlord

and tenant clearly specifying either a room number or some other way by which a particular room can be specifically identified.

[12] The specific relief Mr Karmarkar seeks is:

(a) Acceptance of his claim that the agreement creates a fixed term residential tenancy – that is, it is not a boarding house tenancy;

(b) Rent arrears of $2,542.00;

(c) Costs.

Discussion

[13] What constitutes a boarding house tenancy for the purposes of the Act is an important question of law. However, as with my earlier leave decision, I do not consider that Mr Karmarkar’s appeal is one in which that question, because of its general or public importance or for any other reasons, ought to be submitted to the Court of Appeal for decision. My reasons are as follows.

[14] First, the amount of arrears is $2,542.00, an amount that would not normally warrant the attention of the Court of Appeal.

[15] Secondly, Mr Karmarkar’s legal argument has been considered three times in the Tenancy Tribunal, twice in the District Court and now twice the High Court in two different sets of proceedings. As I made clear in my earlier decisions, whether the tenancy is a boarding house tenancy is a matter of law that is determined by whether the tenancy comes with in the definitions in s 66B of the Act. It not determined by the parties’ intentions as Mr Karmarkar appears intent on establishing. Moreover, the specific facts of Mr Karmarkar’s establishment in Mount Roskill have been considered by three tribunals in the course of these proceedings, each of which has held that

Mr Karmarkar cannot recover the rent because the tenancy for his establishment is a boarding house tenancy under Part 2A of the Act.

[16] Thirdly, my two decisions on the issue, both of which are appeals brought by Mr Karmarkar, appear to have been the first times the High Court has considered directly what constitutes a boarding house tenancy under Part 2A of the Act, even though that Part has been in force since 1 October 2010. Mr Karmarkar apart, therefore, there has not been great demand for Senior Court consideration of Part 2A of the Act.

[17] Fourthly, Mr Karmarkar has represented himself at all stages of the proceeding and it would seem likely that he would be self-represented if leave were granted to appeal to the Court of Appeal. Mr Manda was represented by counsel on a pro bono basis. Whether Mr Manda takes part in any appeal hearing and whether he will be represented by counsel must be open to question. If leave were granted, there is a reasonable prospect that Mr Karmarkar would be the only person appearing before the Court of Appeal.

[18] While Mr Karmarkar prosecuted his case competently in the proceeding to date, I do not consider that much assistance is to be derived on determining an important question of law from the further presentation of arguments by a lay litigant when the arguments he has made to date have been comprehensively considered and rejected by three tribunals. In these circumstances, the finality of justice – as reflected in the leave requirement in s 120 – weighs strongly against the granting of leave.

[19] Finally, I am not satisfied that the grounds of appeal have merit.

[20] The two grounds of appeal which Mr Karmarkar has framed as points of law, referred to above at [11], do not raise arguable points of law:

(a) I accept that affirmative answers to only the first three questions does not determine the result. Naturally, there will be non-boarding house tenancies where the house contains one or more bedrooms along with facilities for communal use by tenants, are occupied or intended to be occupied by six or more tenants, and the tenancy is intended to or does in fact last for 28 days or more. A boarding house tenancy arises only if the answers to all five questions are affirmative.

(b) Mr Karmarkar’s second proposition appears to be that there must be a written agreement between the landlord and tenant in order to decide whether there is exclusive right to occupy particular bedrooms and whether that right derives from the agreement between the landlord and the tenant. That is not what the Act provides. The answers to questions (d) and (e) – like all the questions – are matters of fact to be determined on the evidence in the particular case. A written agreement may be useful and may well be determinative in some circumstances. But it is not a prerequisite.

[21] As to the matters that Mr Karmarkar identifies with respect to his tenancy agreement, the fact and content of the bond lodgement form, the change of tenant form, the single bond and the format of the tenancy agreement do not displace my findings that this was a boarding house tenancy. Nor does the fact that Mr Manda may not have been as vulnerable as others who use boarding houses. I do not consider that these matters and the other matters Mr Karmarkar raises as being errors of fact capable of amounting to an error of law.

Result

_{[22] The application for leave to appeal to the Court of Appeal is dismissed.}

G J van Bohemen J