BETWEEN OLMA INVESTMENTS LIMITED Applicant AND R & A AUTON LIMITED First Respondent AND ANDREW MYERS AUTON and ROBYN IRIS BUTTERS Second Respondents

[2024] NZHC 2580

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-10 [2024] NZHC 2580

BETWEEN

OLMA INVESTMENTS LIMITED

Applicant

AND

R & A AUTON LIMITED

First Respondent

AND

ANDREW MYERS AUTON and ROBYN IRIS BUTTERS

Second Respondents

Hearing:

5 September 2024

Appearances:

D J Ballantyne for Applicant

G P Davis for Second Respondents

Judgment:

9 September 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 9 September 2024 at 2.45 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

OLMA INVESTMENTS LIMITED v R & A AUTON LIMITED [2024] NZHC 2580 [9 September 2024]

Introduction

[1]    On 23 August 2023, Olma Investments Ltd (Olma), entered into a deed of lease with a company, R & A Auton Ltd as the tenant and the company’s directors, Andrew Myers Auton and Robyn Iris Butters, as guarantors. The leased property was a unit at 8 Henrick Lane, Rolleston. It was able to be used as business premises, although the second respondents would also reside there.

[2]    By September 2023 Olma asserts that multiple problems had arisen. The tenant had failed to:

(a)pay  the  full  rental  of  $2,500  plus  GST  per  month  and,  as   at    5 September 2023, Olma claims $12,750 was owing;

(b)pay the outgoings of $734.00 in respect to the Residents Association levies;

(c)comply with cl 48.1 of the deed of lease and cl 20 of the rules of Residents Association by having a pet or pets on the premises without the consent of the Residents Association.

[3]    On 13 September 2023 Olma served notices of demand under s 245 of the Property Law Act 2007 (the PLA notices) on the tenant and the guarantors. Counsel for Olma, Mr Ballantyne asserts that these notices complied with the requirements of ss 245 and 246 of the Property Law Act 2007 (PLA 2007).

[4]    On 6 October 2023, the PLA notices expired unremedied. Despite further time being afforded, the tenant and the guarantors failed or refused to give up vacant possession or any possession of the premises or remedy the default.

[5]    The present application is an application for orders cancelling the deed of lease and seeking orders for possession of the premises which is the subject of the lease. In addition, Olma applies for orders that the tenant and guarantors pay the rent up to the date of cancellation or any later date on which the tenant yields up possession and for the tenant and guarantors to pay reasonable compensation for breaching the deed of

lease, along with legal costs and expenses of and incidental to its application on an indemnity basis under cl 6.2 of the deed of lease.

[6]    The guarantors have regularly appeared at the call-overs of these proceedings. They only obtained legal assistance recently and filed a notice of opposition. It raised various issues, some of a jurisdictional nature and others relating to representations they allege were made to them at the time the lease was entered into.

Resolution

[7]    The application was scheduled to be heard before me on 5 September 2024. After discussion with the parties, they reached an agreement on the orders to be made to resolve the disputes between them. In all the circumstances, I consider the orders were a pragmatic and sensible solution to the ongoing dispute between the parties. Accordingly, I make the following orders by consent:

(a)an order cancelling the deed of lease dated 23 August 2022 between Olma  and  R  &  A  Auton  Ltd  (removed),  as  tenant,   and   Andrew Myers Auton and Robyn Iris Butters, as guarantors (but without prejudice to any accrued or continuing rights as against the tenant or guarantors);

(b)an order for possession of the land comprising the premises at Unit 11, 8 Henrick Lane, Rolleston in favour of the applicant, Olma Investments Ltd, and directing the first and/or second respondents’ yield possession by no later than 27 September 2024 (3 pm);

(c)an order under r 19.5A High Court Rules directing the applicant to file a statement of claim (including any application for summary judgment) by 25 October 2024; and

(d)costs are reserved.

[8]    As the parties note, timetabling under the High Court Rules will apply to the applicant’s statement of claim (including any summary judgment application).

Solicitors:

James Cambridge Law, Wakefield Shaun Cottrell Law

Copies to:

D J Ballantyne, Barrister, Christchurch G P Davis, Barrister, Christchurch