Basraz Vegs N Dairy Warehouse Limited v The Property Trust Partnership

[2018] NZHC 3060

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-002595

[2018] NZHC 3060

BETWEEN

BASRAZ VEGS N DAIRY WAREHOUSE LIMITED

Applicant

AND

THE PROPERTY TRUST PARTNERSHIP

Respondent

On the papers: Counsel:	D S Gopalan for Applicant No appearance by or on behalf of Respondent
Judgment:	23 November 2018

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 23 November 2018 at 3:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Khan & Associates, Papatoetoe

BASRAZ VEGS N DAIRY WAREHOUSE LIMITED v THE PROPERTY TRUST PARTNERSHIP [2018] NZHC 3060 [23 November 2018]

Introduction

[1]                  The  applicant  company  operates  a  dairy   business   from   premises   at 2A Rawhiti Road, Onehunga, Auckland. This morning, it filed an interlocutory application without notice for an interim injunction preventing the respondent landlord or its representatives from re-entering the premises and evicting the applicant.

Background

[2]                  On 2 November 2018, the respondent served a notice on the applicant under  s 245 of the Property Law Act 2007 of its intention to cancel the lease for breach of the covenant to pay rent. It gave the applicant 10 working days’ notice to pay the monthly rental of $1,683.37.

[3]                  The applicant’s director says he did not receive the notice until 17 November 2018, as it had been left at the registered office of the applicant at 101 Trafalgar Street, Onehunga, an address he no longer occupies.

[4]                  The director says when the notice was brought to his attention on 17 November 2018, he paid the outstanding rent immediately. This was one day after the date specified in the notice as the date on or before which the rent had to be paid.

[5]                  It is because of this one day’s default the respondent has said it will re-enter the premises today, take possession of them, change the locks and deny access to the applicant.

[6]                  The applicant employs two people full-time and one part-time, who would be out of work if the dairy shut down. The dairy also sells fruit, vegetables, milk and eggs, which are perishable items. These would be lost if the dairy shut down.

Discussion

[7]                  Upon considering all the evidence filed in support of the application, it seems to me the applicant may have a case for relief against cancellation under s 253 of the Property Law Act 2007 on the grounds of proportionality. There is therefore a serious

question to be tried. The balance of convenience also favours the applicant because of the serious consequences which could ensue following the respondent’s re-entry.

[8]                  The respondent has, however, not been served with the proceeding. Nor is there an underlying application for relief against cancellation of the lease.

[9]                  However, because of the imminence of the respondent’s re-entry, I am prepared to grant an interim injunction to restrain the respondent from doing so, but only to the Duty Judge list at 10.00 am on Thursday, 29 November 2018.

[10]There will be the following orders:

(a)An order for an interim injunction preventing the respondent or its representatives from re-entering the business premises at 2A Rawhiti Road, Onehunga, Auckland and evicting the applicant from the premises, which will lapse on 29 November 2018 unless further extended by the Court.

(b)The applicant is to serve the respondent forthwith with a copy of the proceedings and this judgment.

(c)The applicant is to file and serve an application for relief against cancellation under s 253 of the Property Law Act 2007 by 5.00 pm on Tuesday, 27 November 2018.

(d)The proceedings are to be listed for mention in the Duty Judge list at

10.00 am on Thursday, 29 November 2018.

Woolford J