Holler v Osaki

[2014] NZHC 2470

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4548 [2014] NZHC 2470

BETWEEN

ANDREAS LUIGI HOLLER AND

KATHARINE MARY ROUSE Appellants

AND

KENJI OSAKI First Respondent

AND

TEIKO OSAKI Second Respondent

Hearing:	On the papers
Appearances:	B D Gray QC & E J Walton for Appellants D J Collecutt for Respondents
Judgment	21 October 2014

JUDGMENT OF KEANE J

This judgment was delivered by me on 21 October 2014 at 12pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Wynn Williams, Christchurch

Simpson Dowsett Mackie, Mt Roskill, Auckland

HOLLER AND ROUSE v OSAKI [2014] NZHC 2470 [21 October 2014]

[1]      The appellants, Andreas Holler and Katharine Rouse, seek leave, on behalf of their insurer, under s 120 of the Residential Tenancies Act 1986, to appeal to the Court of Appeal two questions of law. Those questions are:

(a)       Whether residential tenants are immune from a claim by the landlord where the rental property suffers loss or damage caused intentionally or carelessly by the tenant or the tenant’s guests.

(b)       Whether, by enacting the Property Law Act 2007, Parliament has intentionally adopted different positions for commercial and residential tenancies, and has expressed this clearly, so that it is inappropriate for the Courts to construe the Property Law Act 2007 and the Residential Tenancies Act 1986 in a manner which achieves a different effect.

[2]      The first and second respondents will abide my decision, but put in issue whether leave is warranted.  It is agreed that I may make this decision on the papers.

[3]      I am satisfied that my decision does give rise to questions of law of general or public importance, which ought to be submitted to the Court of Appeal for decision, by grant of leave under s 130; and that they are capable of serious and bona fide argument.1

[4]      The questions of law to which my decision gives rise might conceivably be expressed more narrowly than the appellants propose.  In my decision, for instance, the  questions  I  identified  were  these,  ‘In  imposing  liability  on  tenants  for  fire damage, does the RTA incorporate by reference ss 268 and 269 of the PLA, insofar as they exonerate tenants from liability?  Or does it deny them any operative effect?’ But because my own questions are worthy of a second appeal and necessarily arise on the questions proposed, any refinement of those proposed is to be resolved on the appeal itself.

[5]      I grant the application for leave to appeal to the Court of Appeal.

P.J. Keane J

1      Waller v Hider [1998] 1 NZLR 412 (CA) at 413; Snee v Snee (1999) 13 PRNZ 609 (CA).