Aronui Ko Huiarau Trust Board v Edwards - [2013] NZHC 662

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-2731 [2013] NZHC 662

BETWEEN ARONUI KO HUIARAU TRUST BOARD Plaintiff

ANDMARION AGNES EDWARDS AND ANOR
Defendants

Hearing: 21 November 2012

Counsel: S O McAnally for Plaintiff
G J Kohler for Defendants

Judgment: 28 March 2013

JUDGMENT OF KEANE J

This judgment was delivered by on 28 March 2013 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

Solicitors:
Keegan Alexander, Auckland
Schnauer & Co., Auckland

Counsel:
G J Kohler, Auckland

ARONUI KO HUIARAU TRUST BOARD V MARION AGNES EDWARDS AND ANOR HC AK CIV 2012-
404-2731 [28 March 2013]

[1] Aronui Ko Huiarau Trust Board is a charitable trust engaged in tertiary education, which trades as Aronui Technical Trading Centre. Marion and Aaron Edwards are the trustees of a trust, the Kaahu Trust, which is also engaged in tertiary education.

[2] On 11 October 2011 Mr and Mrs Edwards, as trustees, entered into an agreement for sale and purchase under which Te Kaahu Trust purchased a four storey commercial building in Park Avenue, Otahuhu, subject to the then existing tenancies. According to the agreement, the ground floor was then held on a monthly tenancy by Ngawini Puru, trading as Aronui Technical Trading Centre. She is an Aronui trustee.

[3] Under the agreement Te Kaahu Trust became entitled to possession on settlement date, 12 December 2011. At that date the ground floor, then fitted out as a training kitchen and restaurant and an administration area, was locked off and not in use. Te Kaahu took possession understanding, it says, any monthly tenancy to have been terminated or surrendered. On 15 December 2011 Te Kaahu contends, just to be certain, it issued Aronui with a notice to quit.

[4] Aronui accepts that as at 12 December 2011 it had been locked out since November, but inexplicably so. It had paid rent to the end of November and the operating expenses to the end of December. On 4 November 2011 the solicitors for Aronui’s landlord, Kumi Limited, wrote to say that it had sold to KC Trading and Importing Limited to whom Aronui was from then on to pay rent. On 13 December
2011 KC 's solicitors wrote to say that it had on-sold and asked Aronui to pay rent to

Te Kaahu.

[5] On 4, 17 and 20 January 2012 at meetings between the two trusts, Aronui asserted its monthly tenancy and Te Kaahu asserted that any tenancy had been terminated or surrendered. Aronui had a 24 week course about to begin on 23
January 2012, funded by the Tertiary Education Commission, and they agreed in principle that Aronui might use the facility for that purpose but then negotiate a fresh tenancy. They remained at arm's length as to the kitchen equipment. Aronui contended that it belonged to it, Te Kaahu that it was a fixture that had passed to it with title.

[6] On 23 January 2012, Aronui contends, Te Kaahu…

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.

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Details

Case: [2013] NZHC 662
Decision Date: 28 March 2013

CaseChat Overview and Summary

The Aronui Ko Huiarau Trust Board, a charitable trust involved in tertiary education, brought an action against the Kaahu Trust and its trustees, Marion and Aaron Edwards. Aronui sought summary judgment on three causes of action based on a dispute over a monthly tenancy of the ground floor of a commercial building in Park Avenue, Otahuhu. The court had to determine whether Aronui remained a tenant under a short-term lease at the date Te Kaahu took possession and whether that tenancy survived any notice to quit from Te Kaahu until 23 January 2012. The court examined the legal definition of a short-term lease, whether the tenancy was properly notified and served, and whether Te Kaahu could assert that it was entitled to retain possession until Aronui's right was established. The court also assessed whether Aronui had a valid claim for damages based on the alleged repudiation of the tenancy by Te Kaahu.

The court found that Te Kaahu's defences were arguable and could only be resolved on a hearing of evidence. The court declined Aronui's application for summary judgment and ordered that the case be set down for a complete hearing on the evidence. The court awarded Te Kaahu costs at scale 2B and disbursements as fixed by the Registrar, with any issue of principle arising as to costs to be resolved through a memorandum and reply process.

Orders