Audio Essentials Limited v Tripathi - [2017] NZHC 2864

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV2016-004-000616 [2017] NZHC 2864

BETWEEN
AUDIO ESSENTIALS LIMITED

Plaintiff

AND

UMANG TRIPATHI First Defendant

VARUN CHAWALA Second Defendant

VIKAS ROHILLA Third Defendant

Hearing: 13 November 2017

Appearances:

K J Crossland for the Plaintiff
M Norris for the First Defendant

Judgment:

23 November 2017

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on
23.11.17 at 9:30am, pursuant to
Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

AUDIO ESSENTIALS LIMITED v U TRIPATHI U TRIPATHI, V CHAWALAH AND V ROHILLA [2017] NZHC 2864 [23 November 2017]

Background

[1] This claim is about guarantees provided by the defendants for the payment of rent in regard to the lease of a property at 340 Ponsonby Road (the property) by the plaintiff to Yoghurt Story Ponsonby Limited (Yoghurt Story). The defendants agreed with the owners of Yoghurt Story to operate their franchise from the plaintiff’s premises.

[2] Those arrangements were subject to the terms of a deed of lease dated 1 August

2013. By their guarantees the defendants agree to be bound by the lease covenants. The defendants agreed together with Yoghurt Story to pay the plaintiff directly for rent as it became due.

[3] On 29 May 2014, the plaintiff served notices of intention to cancel the lease for failure to pay outgoings totalling $11,616.41. A copy of that notice was delivered to each of the defendants as guarantors. On 14 June 2014 those arrears were paid.

[4] A further notice was served on 25 June 2014 in respect of outgoings totalling

$9,774.58. On 19 September 2014 those arrears were paid.

[5] On 28 October 2014, a further set of notices were served in respect of arrears of rent and outgoings totalling $7,251.08. Those arrears were never paid.

[6] Consequently, on or about 5 December 2014 the plaintiff terminated the lease, and re-entered and took possession of the property.

The plaintiff ’s original claim

[7] The plaintiff claims there was unpaid rent, legal costs and accrued interest, but also that there was an “ongoing liability to the plaintiff for losses… sustained by the plaintiff pending re-letting of the property to a replacement tenant”.

[8] The plaintiff says that on or about 1 September 2015 a new deed of lease for the property was entered into with the replacement tenant, House of Travel.

[9] In addition to the sum of $25,438.74 claimed for rental arrears, outgoings and legal costs to 4 December 2014, the plaintiff claimed the sum of $134,412.47 “through the Property not being able to be re-let until 1 September 2015”.

[10] The plaintiff ’s claim was filed in the Auckland District Court. By his defence filed in that Court, Mr Tripathi admitted he and the other two defendants operated a franchise owned by Yoghurt Story Ponsonby Limited under the name “Yoghurt Story” from the plaintiff’s premises. He also admits executing the lease as a guarantor. His defences included claims…

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 Audio Essentials Limited v Tripathi

Details

AGLC: Audio Essentials Limited v Tripathi [2017] NZHC 2864
Case: [2017] NZHC 2864
Decision Date: 23 November 2017

CaseChat Overview and Summary

Audio Essentials Limited (AEL) brought proceedings against Umang Tripathi, the first defendant, for unpaid rent, legal costs and accrued interest. AEL also claimed for losses sustained by AEL pending re-letting of the property. Tripathi filed a statement of defence and counterclaim/set off. AEL filed an application for summary judgment against Tripathi. Tripathi filed a further affidavit in opposition to the summary judgment application. The Court was required to decide whether AEL was entitled to summary judgment and whether Tripathi’s counterclaim could succeed. The Court held that Tripathi’s counterclaim could not succeed because the evidence was unreliable. AEL was entitled to summary judgment as Tripathi had no arguable defence to AEL’s claim. The Court ordered that Tripathi’s counterclaim be struck out and that summary judgment be entered on AEL’s claim against Tripathi. Tripathi was ordered to pay AEL’s costs.

Orders