Karmarkar v Pendem [2018] NZHC 1110 (18 May 2018)

Last Updated: 18 June 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-2380 [2018] NZHC 1110

BETWEEN	MADHAV HARI KARMARKAR Appellant
AND	S PENDEM & ORS Respondents

Hearing:	On the papers
Judgment:	18 May 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 18 May 2018 at 3.30pm Pursuant to Rule 11.5 of the High Court Rules

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

Registrar/Deputy Registrar

Copy to:

The Appellant (by email)

The Respondents (by email)

KARMARKAR v S PENDEM & ORS [2018] NZHC 1110 [18 May 2018]

Introduction

[1] Mr Karmarkar has applied for leave to appeal to the Court of Appeal against a judgment delivered on 17 April 2018¹ in which I upheld decisions of the Tenancy Tribunal and the District Court² holding that the tenancy for the residential establishment that Mr Karmarkar operates at 37a Hayr Road, Three Kings, Auckland 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] On 8 May 2018, I issued a Minute advising that I proposed to make a decision on the papers and would issue my judgment in due course. I did not hear further from Mr Karmarkar.

Nature of appeal

[3] Mr Karmarkar’s appeal to the High Court was an appeal on a point of law under s 119 of the Act. It raised the general question of what constitutes a boarding house tenancy for the purposes of the Act. This question appears not to have been considered directly by the High Court before.

[4] Under s 120 of the Act:

(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.

¹ Karmarkar v Pendem [2018] NZHC 693

² Karmarkar v Pendem [2017] NZDC 22771

[5] Mr Karmarkar filed his application for leave on 21 April 2018 within the timeframe set out in s120(2).

[6] Mr Karmarkar has not been legally represented at any stage of this proceeding and prepared the application for leave to appeal himself. The grounds in the application are not stated precisely but, apart from the question of intention – in relation to which Mr Karmarkar asserts that any tenancy agreement should be interpreted in the light of the parties’ intentions – Mr Karmarkar does not challenge my analysis of the Act and how the provisions of Part 2A on boarding house tenancies are to be interpreted. Rather, Mr Karmarkar challenges the application of that analysis to the agreement he prepared for his tenants.

[7] In summary, the 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 $10,941.00;

(c) Guidelines to ensure that genuine fixed term tenancies are not viewed as boarding house tenancies by Tenancy Tribunals.

Discussion

[8] What constitutes a boarding house tenancy for the purposes of the Act is an important question of law. However, 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.

[9] First, the amount of arrears is just under $11,000. That is not an amount that would normally warrant the attention of the Court of Appeal.

[10] Secondly, Mr Karmarkar’s argument has been considered twice in the Tenancy Tribunal – in 2016 on the liability for rent arrears of departed tenants and in 2017 on
the same question – as well as in the District Court and the High Court. The question that is important to Mr Karmarkar, namely his ability to recover unpaid rental, has been answered the same way in each tribunal – he cannot recover the rent because the tenancy for his establishment is a boarding house tenancy under Part 2A of the Act. That is a matter of law and is not determined by the parties’ intentions as Mr Karmarkar wishes to establish.

[11] Thirdly, as noted at [2], my decision appears to have been the first time 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. It would seem, therefore, that there has not been great demand for an authoritative analysis of that Part of the Act.

[12] Fourthly, as noted at [6], Mr Karmarkar’s appeal does not challenge my analysis of Part 2A of the Act but rather challenges the application of that analysis to the particular facts of his tenancy.

[13] Fifthly, as noted at [5], 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. Furthermore, there was no appearance by the respondents at the High Court hearing and it would seem highly likely that the same would occur if Mr Karmarkar’s application were granted. Mr Karmarkar has settled his claims against the tenants who continue to reside at his establishment. The remaining claims are against tenants who have returned to India and have little incentive to participate in the litigation.

[14] If Mr Karmarkar’s application were granted, therefore, the likelihood is that Mr Karmarkar would be the only person appearing before the Court of Appeal. While Mr Karmarkar has prosecuted his case competently in the proceeding to date, an uncontested presentation of argument by a lay litigant would not be helpful to the Court’s consideration of a question of law which, because of its general or public importance or for any other reasons, has been submitted to the Court of Appeal for decision.

Result

[15] The application for leave to appeal to the Court of Appeal is denied.









G J van Bohemen J