Bishop Warden Limited v Jashari
[2018] NZHC 2287
•31 August 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-904
[2018] NZHC 2287
BETWEEN BISHOP WARDEN LIMITED
Plaintiff
AND
XHELAL JASHARI
First Defendant
LUMNIJE JASHARI
Second Defendant
Hearing: 27 August 2018 Appearances:
N Tabb for Plaintiff
R Dhillon for defendants
Judgment:
31 August 2018
JUDGMENT OF LANG J
[on application for summary judgment]
This judgment was delivered by me on 31 August 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
BISHOP WARDEN LIMITED v XHELAL JASHARI [2018] NZHC 2287 [31 August 2018]
[1] The plaintiff in this proceeding seeks summary judgment against the defendants in their capacity as guarantors for outstanding rental, outgoings and interest payable in relation to restaurant premises situated in Mission Bay, Auckland.
The claim
[2] Between 8 April 2004 and 26 July 2017, a company called Bleta Limited (Bleta) was the lessee of the premises. Mr Jashari has always been the sole director of Bleta, and he and his wife each owned 50 per cent of the shares in the company. Bleta ceased to trade in July 2017 after Mrs Jashari became seriously ill. The company was placed in liquidation by shareholders’ resolution on 26 July 2017, and has now been removed from the Companies Register.
[3] Bleta was in default with payments of rental, interest and outgoings under the lease for several years before it ceased trading and was placed in liquidation. Mr and Mrs Jashari each signed several documents relating to the lease on the basis that they guaranteed Bleta’s obligations under the lease.
[4] By deed dated 22 December 2017 the lessor of the premises assigned its legal and beneficial interest in any debts owing by the defendants to the plaintiff, Bishop Warden Limited (Bishop Warden). Bishop Warden now seeks summary judgment against the defendants to recover the sums allegedly outstanding under the lease from them in their capacity as guarantors.
The lease
[5] The deed of lease is undated but was signed in or about 1998 by Drive Holdings Limited (Drive Holdings) as lessor and a company called Bar Comida Limited as lessee. The lease was for a period of ten years commencing on 1 June 1998.
[6] The deed of lease required the lessee to pay the sum of $102,593.75 plus GST per annum by way of base rental payable monthly in instalments on the first day of every month. The rental was to be reviewed every two years. In addition, the lessee
was required to pay “percentage rent” calculated at the rate of nine per cent of the lessee’s gross receipts during each year of the lease. The lessee was also required to pay a share of water rates and local authority rates for the leased premises, together with a proportion of the operating expenses for the complex in which the premises were situated. This was payable in a sum not exceeding ten per cent of the total operating expenses for the complex.
[7] If the lessee was in default in making any of the payments due under the lease for more than seven days, it was required to pay interest on the outstanding sum at a rate five per cent above bank overdraft lending rates as at the date of default. If the lessee remained in default for more than 14 days, it was required to pay a charge calculated at ten per cent of the amount in default as well as all reasonable legal expenses incurred by the lessor in recovering that amount.
[8] Clause 4.01 of the deed of lease permitted the lessee to assign its interest under the lease after the fourth year of the term of the lease. Any assignment required the prior written consent of the lessor. The clause provided that the lessor was prohibited from withholding its consent unreasonably or arbitrarily provided three conditions were met. These were as follows:
(a)the Lessee shall demonstrate to the satisfaction of the Lessor that the proposed assignee is a respectable and financially responsible person or corporation of sound financial standing and of proven ability to conduct the business the use of which is permitted by this Lease and the onus of proving which shall be upon the Lessee.
(b)All rent and other moneys payable by the Lessee to the Lessor up to the date of such assignment shall have been paid together with an additional month’s contribution to Operating Expenses which shall be held by the Lessor pending an actual determination of the Operating Expenses of the Centre and any refund due to then [sic] be paid by the Lessor to the outgoing Lessee.
(c)There is not an existing unremedied breach of any of the terms of the lease.
…
[9] By deed of assignment of lease dated 8 April 2004, Bar Comida Limited assigned its interest as lessee under the deed of lease to Bleta. Drive Holdings consented to the assignment. Under the deed of assignment Mr Jashari guaranteed
Bleta’s obligations under the deed of lease. By this stage rent was payable in the sum of $118,181.40 plus GST per annum.
[10] On or about 29 September 2008, Bleta and the lessor entered into a deed of variation of lease under which the lease was extended to 31 August 2012. Mr and Mrs Jashari both signed this document as guarantors. The deed permitted the lessor to terminate the lease by giving four months notice provided this occurred no earlier than 1 May 2009. This clause was evidently included because the lessor wanted to have the ability to terminate the lease prior to its expiry to enable it to develop the complex in which the leased premises were situated.
[11] On or about 20 June 2011, the parties executed a further deed of variation of lease. This extended the term of the lease until 2 June 2018, with two yearly rent reviews continuing through to that date. The defendants again signed this deed as guarantors of Bleta’s obligations under the deed of lease.
[12] Bleta fell behind in its payments under the lease in 2012 and remained in default until it ceased trading on or about 23 July 2017 after Mrs Jashari became ill. During this period it was required to make monthly payments of base rent and outgoings as follows:
1/7/12 – 30/6/13 - $17,779.35
1/7/13 – 30/6/16 - $17, 854.10
1/7/16 - 30/6/17 - $17,720.70
1/7/17 - 30/6/18 - $18,010.50
[13]By the expiry of the lease Bleta owed the following amounts:
Unpaid rent and outgoings - $599,888.48 Penalty on late payments - $59,988.84 Interest on late payments - $361,882.77
[14] Bishop Warden has not received any payments from Bleta’s liquidators in reduction of the debt. It therefore seeks summary judgment against the defendants in relation to the sums Bleta owes under the deed of lease.
Relevant principles
[15] The principles that apply to an application for summary judgment have been clearly established through decisions of the Court of Appeal such as Pemberton v Chappell, Grant v NZMC Ltd and Westpac Banking Corp v MM Kembla New Zealand Ltd.1
[16] I therefore propose to apply the following general principles, which apply to all applications for summary judgment:
(a)Bishop Warden must satisfy the Court that Mr and Mrs Jashari have no arguable defence to the claims brought against them. The issue is whether there is a real question to be tried.
(b)It is generally not possible to determine disputed issues of fact based on affidavit evidence alone, particularly when issues of credibility arise. Issues of law, even though they may be complex, can, however, be determined in an application for summary judgment.
(c)Although the Court should adopt a robust approach, nevertheless summary judgment may be inappropriate where the ultimate determination turns on a judgment which can only properly be reached after a full hearing of all the evidence.
The proposed defences
[17] The defendants have filed a statement of defence and also documents in opposition to the application for summary judgment. These include affidavits by both Mr and Mrs Jashari.
[18] Mr and Mrs Jashari do not take issue with Bishop Warden’s calculations of the amounts owing under the deed of lease. They deny, however, that they intended to provide personal guarantees in relation to Bleta’s obligations under the lease.
1 Pemberton v Chappell [1987] 1 NZLR 1 (CA); Grant v NZMC Ltd [1989] 1 NZLR 8 (CA) and
Westpac Banking Corp v MM Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA).
[19] Mr and Mrs Jashari also say they are entitled to advance a defence based on set-off. This is said to arise out of the lessor’s unreasonable refusal to consent to an assignment of the lease to two proposed purchasers of Bleta’s business.
Intention to provide guarantees
[20] The difficulty with this proposed defence is that both Mr and Mrs Jashari have signed documents relating to the lease purportedly as guarantors. Mr Jashari signed the deed of assignment under which Bleta took an assignment of the lease from Bar Comida Ltd in April 2004. Mr Jashari’s signature was witnessed by the solicitor who acted for Bleta in relation to the assignment. The Fourth Schedule to the deed of assignment contained the following provisions:
1.IN consideration of the Landlord consenting to the Assignment of Lease at the request of the Guarantor the Guarantor guarantees to the Landlord:
1.1The due and punctual payment to the Landlord by the Assignee of all future rent and other moneys provided for in the Lease; and
1.2The observance and performance by the Assignee of all the Assignor’s covenants in the Lease;
and the Guarantor indemnifies the Landlord against any actions, costs, claims, demands, damages or losses suffered by the Landlord as a result of the Lease being lawfully disclaimed by any liquidator or receiver or arising through default being made by the Assignee in payment of rent or in observance or performance of the covenants, conditions and provisions in the Lease from the Date of Assignment or otherwise howsoever.
2.THE Guarantor agrees that neither an assignment of the lease nor any rent review in accordance with the lease nor any indulgence granting of time waiver or forebearance to sue or any other thing whereby the Guarantor would be released as a surety in any way releases the Guarantor from liability hereunder.
[21] Mr and Mrs Jashari both signed the deeds of variation of lease dated 29 September 2008 and 20 June 2011 as guarantors. Their signatures in each document were witnessed by a third party, although not by a solicitor. The deeds of variation contained the following clause:
4 GUARANTORS
4.1 The Guarantors hereby acknowledge that they will remain bound by the guarantee provisions set out in the Fourth Schedule of the Lease throughout the term of the Lease.
[22] The Fourth Schedule of the lease comprised a comprehensive guarantee in relation to all of the obligations of the lessee under the deed of lease.
[23] Against that background it is not now credible for Mr and Mrs Jashari to now claim they never intended to guarantee Bleta’s obligations under the lease. Furthermore, it is inherently unlikely that any reasonable lessor of commercial premises would be prepared to enter into a lease to a limited liability company without obtaining the personal guarantee of the shareholders or directors of the company.
[24]Mr and Mrs Jashari have not raised an arguable defence under this head.
Unreasonable refusal to permit assignment to proposed purchasers of the business
The first proposed assignment
[25] Mr Jashari’s evidence regarding this assignment is encapsulated in the following paragraphs of his second affidavit:
10.On or around July 2012, I entered into discussions with a Mr Bashir Ahmed regarding the sale and purchase of Bar Comida Ltd.
11.I know Mr Ahmed to be a well-respected doctor, who, at the time, successfully owned and operated Mecca Stonehouse Café in Mission Bay, Auckland.
12.Mr Ahmed and I came to an agreement that the purchase price for Bar Comida would be $450,000 + GST which included tangible assets worth $20,000 + GST and stock worth $5,000, and Mr Ahmed would pay a deposit of $25,000 + GST. The possession date was set as 1 August 2012.
13.I was under financial stress at the time and wanted a quick sale of Bar Comida so I did not charge goodwill I had accumulated since 2004.
14.Under different circumstances, I would have charged goodwill.
15.Mr Ahmed entered the above details on to the Agreement for Sale and Purchase of a Business annexed as ‘A’ (here forth referred to as the Agreement for Sale and Purchase).
16.Mr Ahmed had not signed the Agreement for Sale and Purchase as I had advised him that I first needed to seek consent from UP Management Ltd and/or Drive Holdings Ltd. Mr Ahmed had no further terms/conditions for the purchase of Bar Comida.
17.I had no reason to believe, and was not made aware of any reason as to why consent to purchase and reassign the lease to Mr Ahmed should be reasonably withheld by UP Management Ltd and/or Drive Holdings Ltd.
18.In a meeting with Mr Porter, I verbally advised him that Mr Ahmed was the intended purchaser. I was immediately advised by Mr Porter that he was withholding consent for Mr Ahmed to purchase Bar Comida and reassign the lease.
19.I was not advised why consent was being withheld by Mr Porter.
[26] Mr Jashari exhibits to his affidavit an undated agreement under which Mr Jashari agreed to sell Bleta’s business to an unnamed purchaser on 1 August 2012 for the sum of $450,000.
The second proposed assignment
[27] Mr Jashari deposes he and his wife met with Mr Marshall and Mr Porter, the lessor’s representatives, in or about March 2015 to discuss the sale of their business. This would involve the assignment of the lease of the premises to the purchaser. Mr and Mrs Jashari say they received verbal confirmation from the lessor’s representatives that the lessor would consent to the sale of the business and the assignment of the lease if they were able to find a suitable purchaser. They say they had no reason to believe the lessor would withhold its consent to a sale to suitable purchasers.
[28] Mr Jashari then describes the proposed sale of the business to Harjeet and Sukhbir Singh as follows:
27.Harjeet Singh, Sukhbir Singh and I came to an agreement that the purchase price for Bar Comida would be $457,000 which included tangible assets worth $20,000 and stock worth $7,000 and I would be paid a deposit of $45,700 (where GST would be zero-based). The possession date was set as 1 April 2015.
28.I was under financial stress at the time and wanted a quick sale for Bar Comida so I did not charge goodwill I had accumulated since 2004.
29.Under different circumstances, I would have charged goodwill.
30.The second Agreement for Sale and Purchase was created by Harjeet Singh and Sukhbir Singh and was duly signed by them.
[29] Mr Jashari exhibits to his affidavit a signed copy of the agreement for the sale of the business to Harjeet Singh and Sukhbir Singh as purchasers. The purchase price is $457,000 and settlement is to occur on 1 April 2015. The agreement is conditional on the landlord’s consent being obtained within 20 working days of the date of the agreement, and upon the purchasers obtaining sufficient finance to complete the purchase within the same time frame. The agreement also contains the following special condition:
18.0 Lease variation or new lease
This agreement is conditional upon the purchaser being able to arrange a new lease or a variation of the current lease having 2 (two) rights of renewal of 8 (eight) years each. This condition is to be satisfied on or before 20 working days of the date of this agreement.
[30]Mr Jashari deposes as follows in relation to this clause:
31.I am aware that at clause 18.0 of the second Agreement for Sale and Purchase there is a right of renewal clause.
32.I was made aware by Harjeet Singh and Sukhbir Singh that clause
18.0 was not a necessary clause and that it could be removed without hesitation.
33.I was aware that Harjeet Singh and Sukhbir Singh ran multiple successful businesses including a restaurant in the North Shore of Auckland and a food warehouse.
34.I had no reason to believe, and was not aware of any reason as to why consent to purchase and reassign the lease should be reasonably withheld by UP Management Ltd and/or Drive Holdings Ltd.
35.In a meeting with Mr Porter and Mr Marshall in March 2015, Lumnije and I were made aware that consent for Harjeet Singh and Sukhbir Singh to purchase Bar Comida was being withheld due to clause 18.0 on the second Agreement for Sale and Purchase.
36.Lumnije and I informed Mr Porter and Mr Marshall that this clause was not necessary and that it could be removed.
37.Consent for Harjeet Singh and Sukhbir Singh to purchase Bar Comida remained unreasonably withheld by Mr Porter and Mr Marshall.
The plaintiff’s response
[31] Mr Ross Porter, a property manager engaged throughout by the lessor to manage its properties in Mission Bay, has filed two affidavits responding to Mr Jashari’s claims. He describes the process that his company has put in place to deal with the situation where a lessee indicates it wishes to assign its interests under a commercial lease to a third party. The lessee is required to identify the proposed assignee and submit financial and other information regarding the suitability of the proposed assignee as a tenant. This information will be screened by a property manager before the formal assignment proposal is submitted to the Leasing Committee. Information to support the proposal is usually provided by the tenant or the tenant’s solicitors. A final decision as to whether the assignment is to be approved is then made by the Leasing Committee. Mr Porter says the Leasing Committee is aware of its obligations under both the assignment provisions of the lease and the Property Law Act prevailing at the time.
[32]Mr Porter then deposes:
6.I have searched our records and I confirm that neither Mr Jashari or any other representative of Bleta Limited (the tenant company) completed an application/request (paperwork) or provided any other supporting information or documentation to request the landlords consent to assignment of the lease for the premises at 81 Tamaki Drive, Mission Bay, Auckland at any time in 2012.
7.I note that the sale and purchase agreement attached to Mr Jashari’s affidavit as exhibit A does not include a purchaser’s name and is not signed for or on behalf of the purchaser. I confirm that landlords consent would not have been provided without knowing who the prospective purchaser/tenant was and without seeing other information about the purchaser/proposed assignee. As mentioned above we request detailed information about any prospective tenant before considering whether to agree to assignment of a lease.
…
9.At paragraph 5 of his affidavit Mr Jashari refers to a meeting with myself, Rob Marshall, Mr Jashari and his wife in January 2015. I do not specifically recall this meeting and do not have a record of it. Neither Rob Marshall or myself have authority to grant consent to an assignment of lease without the matter being submitted to our Leasing Committee for its approval. We would not have indicated to Mr Jashari that an assignment of lease would be approved without going through that process. While I don’t have a record of the meeting our policy would be to indicate to Mr Jashari that if he secured a
prospective purchaser either he or his solicitor should request consent for assignment with supporting information which would be submitted to our Leasing Committee for consideration.
10.I do have a record of a meeting on 4 March 2015 where Mr Jashari, Mrs Jashari, Rob Marshall and myself were present. My notes indicate that Mr Jashari was in discussion with Harjeet and Sukhbir Singh, the operators of the Bolero restaurant in Albany. We were advised that the purchaser’s interest in acquiring the business was conditional on the landlord granting two rights of renewal for additional terms of eight years each. We understood from Mr Jashari that the requested lease term extension would be for terms certain rather than being subject to termination under the redevelopment provisions in the Lease. Drive Holdings Limited, the landlord, was not in a position to grant the extended lease term required as it was contemplating a redevelopment of the property and required the opportunity to gain vacant possession of the premises.
11.I note that the sale and purchase agreement attached to Mr Jashari’s affidavit as exhibit B does identify the parties referred to in the preceding paragraph as the purchaser. That sale and purchase agreement has further terms of sale, clause 18 states “This agreement is conditional upon the purchaser being able to arrange a new lease or a variation of the current lease having 2 (two) rights of renewal of 8 (eight) years each…”. I confirm that prior to 2015 the property managers had been advised by the owner of the property at 81 Tamaki Drive, Mission Bay that the property was to be redeveloped at the end of the existing lease period (which was 2018). In these circumstances the landlord would not have consented to a new lease or a lease variation which ran for 16 years (2 lots of 8) from 2015. Accordingly clause 18 sets out a condition that was not going to be satisfied.
Decision
[33] The proposed defence faces several legal obstacles. The first relates to whether the defendants have the ability to mount a defence based on set-off.
[34] The courts have been prepared to refuse summary judgment in situations where the defendant establishes an arguable cross-claim against the plaintiff so closely connected to the plaintiff’s claim that it would be unjust for the plaintiff to obtain judgment.2 Importantly, however, that will only occur where the claims to be set off against each other exist between the same persons and in the same right.3
2 Grant v NZMC Ltd, above n 1, at 12-13; Hamilton Ice Arena Ltd v Perry Developments Ltd [2002] 1 NZLR 309 (CA) at [5].
3 Hamilton Ice Arena Ltd v Perry Developments Ltd, above n 2, at [8], citing Halsbury’s Laws of England (4th ed, 1983) vol 42 Set-off and Counterclaim at [435].
[35] In the present case the debt is owed by Mr and Mrs Jashari personally under their guarantee. However, any claim based on unreasonable refusal to grant consent to an assignment would necessarily need to be made by the company because the company was the lessee and the owner of the business. Any loss arising out of the unreasonable refusal by the lessor to grant consent to an assignment of lease would therefore be suffered by the company and not the defendants. Furthermore, the courts have declined to lift the corporate veil in considering the issue of set-off.4 It would therefore be for Bleta’s liquidators, and not the defendants, to bring a claim against the lessor if they considered a cause of action existed based on unreasonable refusal to grant consent to an assignment of the lease. It follows that there is no mutuality of parties that would enable Mr and Mrs Jashari to advance a defence based on set-off.
[36] The proposed defence also confronts factual hurdles. In order to advance an arguable defence it would be necessary for the defendants to show, as a bare minimum, that they had obtained firm offers to acquire Bleta’s business and had also taken reasonable steps to obtain the lessor’s consent to the proposed assignment of the lease as required by the deed of lease.
[37] This requirement flows from the fact that a lessor who is asked to approve an assignment to a third party is faced with an important commercial decision. That is particularly so where, as in the present case, the annual rental amounts to a significant sum. No reasonable lessor of commercial premises would consent to an assignment without undertaking enquiries of the type referred to by Mr Porter. The risk inherent in proceeding without doing so is obvious because the commercial viability of any lease arrangement depends on the ability of the lessee to comply with its obligations under the lease. To the forefront of these are the obligations to pay rental and outgoings on due date and without deduction.
[38] The importance of these issues is such that negotiations leading to an assignment of a lease are commonly conducted through solicitors because they understand the information the lessor will require before a decision as to assignment can be made. One would ordinarily expect to see the lessee providing the lessor with
4 Hamilton Ice Arena Ltd v Perry Developments Ltd, above n 2, at [9].
sufficient details about the identity, history and financial situation of the proposed assignee to enable the lessor to make an informed decision whether to consent to the assignment. No lessor of a commercial property such as this would deal with such an important issue by way of a casual conversation.
The first proposed assignment
[39] The evidence regarding the first proposed assignment is seriously deficient. The agreement for sale and purchase exhibited to Mr Jashari’s affidavit does not identify the proposed purchaser and it was never signed by the purchaser. Mr Jashari’s evidence does not show that he took any formal steps to obtain the lessor’s consent to the transaction, and there is nothing to suggest he ever provided the lessor with details of the proposed lessee’s financial position and background.
[40] Mr Porter’s response to the claim relating to the first proposed assignment is as follows:
5.In paragraphs 10 – 19 Mr Jashari refers to a proposed sale to Mr Ahmed. While Mr Jashari may have informally discussed an extension of the lease term to satisfy a condition of the proposed offer the landlord was not willing to grant the extended lease term for reasons outlined in my earlier affidavit and below. As outlined in my earlier affidavit neither Mr Jashari nor his legal representative ever made a formal request for approval to assign the lease either in association with this prospective sale of the business nor any other prospective sale of the business.
[41] Other than the undated and unsigned agreement there is no contemporaneous documentation relating to the first proposed assignment. It is impossible to ascertain from the material available whether the parties concluded an agreement for the sale of the business as Mr Jashari contends. Furthermore, there is no evidence Mr Jashari formally sought an assignment of the lease or provided the lessor with details of the proposed assignee. The only reasonable inference to draw is that the parties to this transaction decided not to proceed with it for reasons unrelated to the assignment of the lease. Mr and Mrs Jashari have therefore failed to raise an arguable defence in relation to the first proposed assignment.
The second proposed assignment
[42] The position is factually different in relation to the second proposed assignment because the second agreement for sale and purchase identifies the purchasers and they have signed the agreement. Mr Porter also recalls some discussions with Mr Jashari regarding this transaction.
[43] Again, however, Mr Jashari has produced no evidence to confirm he took any steps to obtain the lessor’s consent to the proposed assignment. His bald assertion that he broached the issue orally with Mr Porter only to be rebuffed is insufficient to provide an arguable defence. The defendants needed to show they took reasonable steps to obtain the lessor’s consent in the manner required by the lease and the lessor unreasonably refused to consent to the assignment. Ordinarily that would be done by producing copies of contemporaneous correspondence to show what occurred.
[44] Mr Porter does not recall receiving any information about the proposed lessee from Mr Jashari, and he says his company’s records do not contain any documentation of the type he would expect to see if Mr Jashari had made a formal request for the lessor’s consent to the assignment. Nor did the issue ever proceed to the Leasing Committee for a decision as to that issue to be made. In addition, Bleta was in default in payment of rent and outgoings under the lease by this stage. For that reason the lessor was entitled to withhold its consent to the proposed assignment under Clause 4.01(b) of the deed of lease.5
[45] There is contemporaneous support for Mr Porter’s explanation for the reasons why the lease could not be extended. In a letter dated 6 March 2015 Mr Porter advised Mr and Mrs Jashari:
Following on from our recent meeting I confirm that we are not presently in a position to extend the lease of your premises beyond its current expiry date of 31 May 2018. The reason for this is that the Berkeley cinema lease expires in June 2018 and in the event they do not continue beyond that time we will need to reconfigure the building in order to accommodate a different use of the area currently occupied by the cinema operation.
5 Set out above at [8].
We are hopeful of negotiating an extension to their lease but will need some time in order to achieve this.
We appreciate that this is not helpful to your situation but is the best we can do given the circumstances.
[46] There is no evidence from the proposed purchasers to support the assertion by Mr and Mrs Jashari that the condition contained in Clause 18.0 of the second agreement for sale and purchase was not an important condition from the purchasers’ perspective. When the parties signed that agreement the lease was due to expire in approximately three years time. The purchasers were proposing to spend $457,000 to acquire the business. Logic therefore suggests an extension of the lease would have been a very important factor in the proposed acquisition of the business.
[47] The absence of any formal attempt by Mr and Mrs Jashari to obtain the lessor’s consent to this proposal leads me to conclude that they have failed to advance an arguable defence under this head as well.
Result
[48] I enter summary judgment in favour of Bishop Warden jointly against the defendants in the following sums:
(a)Unpaid rent and outgoings to 1 June 2018 - $599,888.48.
(b)Penalty on late payments calculated at the rate of ten per cent -
$59,988.84.
(c)Interest on late payments - $361,882.77.
[49] Clause 14.01(b) of the lease entitles the lessor to recover legal costs incurred in recovering any amount due under the lease as a result of any breach of the terms of the lease by the lessee. I therefore enter judgment for the plaintiff against the defendants jointly for the sums claimed in the memorandum of counsel for the plaintiff
dated 27 August 2018. Judgment is entered, however, on a GST exclusive basis because I presume the plaintiff is registered for GST.6
Lang J
Solicitors:
Natalie Tabb, Auckland Copy to: Defendants
6 See New Zealand Venue and Event Management Ltd v Worldwide NZLLC [2016] NZCA 282 (2016) 23 PRNZ 260 at [16].
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