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Blake v Blake

Blake v Blake

Case [2022] NZHC 3161 29 November 2022

Contract Formation

Admissibility of Evidence

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-000295

[2022] NZHC 3161

BETWEEN
GRANT BLAKE

Plaintiff

AND

KAEL EARLE JAMES BLAKE

First Defendant

AND

KAEL BLAKE HOMES LIMITED

Second Defendant

Hearing: 13 October 2022

Appearances:

D G Dewar and H M Nelson for the Plaintiff K P Sullivan and K S Dixit for the Defendants

Judgment:

29 November 2022

JUDGMENT OF GRICE J

Introduction

[1] Mr Grant Blake (Grant) lives in a property at 36 Cleland Crescent, Lower Hutt (the property), owned by his son, Mr Kael Blake (Kael), through his company, Kael Blake Homes Ltd.1 Kael is a property developer. This is an application for an interim injunction to restrain Kael from evicting his father.

[2] Until Kael purchased the property in November 2019, Grant had been renting the property for some years from his friend and landlord, Mr Colin Swenson. When

1 I refer to Mr Grant Blake as Grant and Mr Kael Blake as Kael to avoid any confusion. I refer to Kael as including his company, the second defendant which now owns the property.

BLAKE v BLAKE [2022] NZHC 3161 [29 November 2022]

Mr Swenson became terminally ill, he offered to sell the property to Grant at a price which all parties accept was very favourable. Mr Swenson indicated the sale had to take place before a set date.2 Grant presented the opportunity to his son, Kael, and Kael and his partner, Ms Patricia Keogh, purchased the property in November 2019.

[3] On 25 February 2022, Kael sent Grant a notice to vacate the property. Shortly before the notice was due to expire, Grant applied to this Court for a without notice interim injunction to restrain Kael from evicting him. That injunction was granted on an interim basis pending a full hearing of the injunction application. Kael was served on a Pickwick basis3 and he appeared in person at an urgent hearing to determine the matter. Kael did not have legal assistance nor did he file any affidavits in the matter. The without notice interim injunction was granted on 31 May 2022, the day before the expiry of the notice, on the understanding the matter was to be brought on for a timely hearing, giving Kael the opportunity to file a notice of opposition and statement of defence and supporting affidavits.4

[4] The parties then decided it would be more efficient to have the substantive proceedings heard in a timely manner, rather than deal with the application for injunction separately. The matter was set down for a two-day hearing in October 2022. For various reasons, including a failure contributed to by both parties to keep to the timetable, Grant applied for an adjournment. He said he was not in a position to proceed given the late filing of the defendants’ affidavits and statement of defence and due to his ill health.

[5] Kael opposed the application for adjournment and in particular sought to proceed with the…

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 Blake v Blake

Details

AGLC: Blake v Blake [2022] NZHC 3161
Case: [2022] NZHC 3161
Decision Date: 29 November 2022

CaseChat Overview and Summary

Grant Blake has applied for an interim injunction to prevent his son, Kael Blake, from evicting him from a property at 36 Cleland Crescent, Lower Hutt, which is owned by Kael through his company, Kael Blake Homes Limited. The interim injunction was granted without notice on 31 May 2022. The matter has now been brought before the Court to determine whether the interim injunction should be made permanent. The Court found that the application should be dismissed.

The Court considered the legal issues of whether there was a serious question to be tried in respect of all three causes of action pleaded by Grant: contract, institutional constructive trust, and estoppel. The Court found that the claims were unlikely to succeed, as the evidence was weak, particularly in light of the formal documentation which pointed to a straightforward agreement for sale and purchase and a signed tenancy agreement.

The Court then considered the balance of convenience, weighing the harm that may be caused to the parties if the interim injunction was not granted, against the harm that may be caused if it was granted. The Court found that the balance of convenience rested in Kael’s favour, as the weakness of Grant’s case was significant, and damages would be unlikely to adequately compensate Kael for being kept out of the property and unable to access it to maintain and repair it.

The Court dismissed the application for an interim injunction and adjourned the substantive proceedings to a case management telephone conference on a date to be set by the Registrar.

Orders