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…

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 116 Callisto Limited v Linwood Park Stud Limited

Details

AGLC: 116 Callisto Limited v Linwood Park Stud Limited [2017] NZHC 1668
Case: [2017] NZHC 1668
Decision Date: 19 July 2017

CaseChat Overview and Summary

The case of 116 Callisto Limited v Linwood Park Stud Limited concerns a dispute between the property owner, 116 Callisto Limited, and the lessee, Linwood Park Stud Limited. The former has applied to the High Court of New Zealand under sections 244 and 251 of the Property Law Act 2007 for an order to cancel the lease and to regain possession of the leased property located at 116 Redoubt Road, Cambridge. The application was filed on 24 April 2017, and the relevant documents were served on Linwood Park Stud Limited on 2 May 2017. The case was initially scheduled for the Duty Judge List on 21 June 2017 but was adjourned at the request of counsel for 116 Callisto, as the directors were still considering whether to proceed with the application. The matter was subsequently heard on 19 July 2017 before Heath J.

The primary legal issue in this case was whether the defaults committed by Linwood Park Stud Limited warranted the cancellation of the lease and an order for 116 Callisto Limited to regain possession of the leased property. Heath J accepted the affidavit of Ms Johnson, one of the directors of 116 Callisto, which evidenced defaults on the part of Linwood Park Stud Limited. Heath J was satisfied that these defaults justified the cancellation of the lease and an order permitting 116 Callisto Limited to enter back into possession of the land. The court noted that a business was still being carried on from the land, and as such, the proposed order would not be effective for granting possession until 18 September 2017, at which time the principals of Linwood Park Stud Limited had agreed to vacate.

Heath J made several orders in this case. Firstly, the lease dated 26 January 2016 between 116 Callisto Limited and Linwood Park Stud Limited was cancelled as of 18 September 2017. Secondly, 116 Callisto Limited was granted possession of the land on 18 September 2017. Thirdly, Linwood Park Stud Limited was directed to pay 116 Callisto Limited rent and operating expenses under the lease up to the date of cancellation of the lease on 18 September 2017. Fourthly, Linwood Park Stud Limited was required to pay interest to 116 Callisto Limited pursuant to clause 3 of the lease. Lastly, Linwood Park Stud Limited was ordered to pay 116 Callisto Limited's reasonable expenses for giving notice of intention to cancel the lease under section 245 of the Act, and the costs (and disbursements) for this proceeding on a 2B basis.

Orders