116 Callisto Limited v Linwood Park Stud Limited

[2017] NZHC 1668

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2017-404-812 [2017] NZHC 1668

BETWEEN

116 CALLISTO LIMITED

Applicant

AND

LINWOOD PARK STUD LIMITED Respondent

Hearing:	19 July 2017
Counsel:	S M Jass for Applicant No appearance by, or on behalf of Respondent
Judgment:	19 July 2017

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Tompkins Wake, Hamilton

116 CALLISTO LIMITED v LINWOOD PARK STUD LIMITED [2017] NZHC 1668 [19 July 2017]

[1]      116 Callisto Ltd owns a property at 116 Redoubt Road, Cambridge.   That property is leased to Linwood Park Stud Ltd.   116 Callisto has applied for orders under ss 244 and 251 of the Property Law Act 2007.  In short, an order cancelling the lease is sought, together with a direction that it may take back possession of the land.

[2]      The application  was filed on 24 April 2017.   Proof of service has been provided.  The relevant documents were served on Linwood Park Stud Ltd on 2 May

2017.

[3]      Initially the proceeding was for call in the Duty Judge List on 21 June 2017. It was adjourned from that date at the request of counsel for 116 Callisto.  At that stage the directors of that company were still considering whether to proceed with the application.  The application was called before me today.  Mr Jass, on behalf of

116  Callisto,  informed  me  that  that  the  directors  now  wish  to  proceed.    No appearance was entered on behalf of Linwood Park Stud Ltd.

[4]      I have read the affidavit of Ms Johnson, one of the directors of 116 Callisto, in support of the application.  I am satisfied that it evidences defaults on the part of Linwood  Park  Stud  Ltd  which  justify  cancellation  of  the  lease  and  an  order permitting 116 Callisto to enter back into possession of the land.  Mr Jass informs me that a business is still being carried on from the land and that is why the proposed order will not be effective as to the granting of possession until 18 September 2017. The principals of Linwood Park Stud Ltd appear to have agreed to vacate at that time.

[5]      On the basis of the evidence contained in Ms Johnson’s affidavit and what I

have been told by Mr Jass today, I make the following orders:

(a)      The lease dated 26 January 2016 between 116 Callisto and Linwood Park Stud Ltd, relating to the premises at 116 Redoubt Road, Cambridge 3494 being described as Pt A LOT 175 PSH, Pt A LOT

174 PSH and Pt A LOT 173A on Certificate of Title SA35B/262 (the land), is cancelled as of 18 September 2017.

(b)      116 Callisto Ltd is given possession of the land on 18 September

2017.

(c)      Linwood  Park  Stud  Ltd  shall  pay  to  116  Callisto  Ltd  rent  and operating expenses under the lease up to the date of cancellation of the lease on 18 September 2017.

(d)Linwood Park Stud Ltd shall pay 116 Callisto Ltd interest, pursuant to clause 3 of the lease.

(e)      Linwood  Park  Stud  Ltd  shall  pay  116  Callisto  Ltd’s  reasonable expenses for giving notice of intention to cancel the lease under s 245 of the Act, and the costs (and disbursements) for this proceeding on a

2B basis.

P R Heath J