Blake v Blake - [2022] NZHC 1232

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-295

[2022] NZHC 1232

BETWEEN
GRANT BLAKE

Plaintiff

AND

KAEL EARLE JAMES BLAKE

First Defendant

AND

KAEL BLAKE HOMES LIMITED

Second Defendant

Hearing: 30 May 2022

Counsel:

D G Dewar and H M Nelson for the Plaintiff First Defendant in Person

Judgment:

31 May 2022

JUDGMENT OF CHURCHMAN J

(Interim injunction decision)

Background

[1] On 27 May 2022, the plaintiff filed a without notice application for an interim injunction together with supporting documentation.

[2] The matter came before Cooke J the same day and he issued a minute directing that the injunction application and other documents be served and for the matter to be called in the Judge’s Chambers List (JCL) on Monday 30 May 2022. 1

1 Blake v Blake & Kael Blake Homes Limited, minute of Cooke J CIV-2022-485-295, 27 May 2022.

BLAKE v BLAKE [2022] NZHC 1232 [31 May 2022]

[3] The matter was called in this morning’s JCL and, as no agreement could be reached as between the parties, the interim injunction application proceeded by way of defended hearing.

The facts

[4] The plaintiff is the father of the first defendant. The plaintiff is 67 years of age and a superannuitant. He is said to be in poor physical and mental health. The first defendant is the sole director and shareholder of the second defendant, which is a property development company.

[5] The plaintiff has resided at 36 Cleland Crescent, Naenae for over 25 years. Up until 2019, the plaintiff’s landlord at that address was Colin Swenson. Mr Swenson is said to have offered the plaintiff the opportunity to purchase the property at its 2017 rateable value, a sum which is said to be significantly less than its then market value.

[6] The statement of claim pleads that the concessional price was offered by way of the longstanding friendship between the plaintiff and Mr Swenson and recognition by Mr Swenson of the plaintiff’s community service.

[7] The plaintiff was not in a financial position to buy the property so arranged for the first defendant to be the purchaser. The plaintiff pleads that there was an agreement between him and his son that his son would permit him to remain in the property for the rest of his life and that he would pay an increased rental in the sum of $420 per week.

[8] The first defendant and his then partner took title to the property and on or about 22 December 2020, the property was transferred to the second defendant.

[9] On 25 February 2022, the first defendant gave the plaintiff a notice to vacate the property within 90 days.

[10] The plaintiff has refused to vacate the property and has instituted proceedings alleging three causes of action; breach of contract, the existence of an institutional constructive trust, and estoppel.

[11] The plaintiff seeks both interim and final relief restraining each of the defendants from terminating 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 1232
Case: [2022] NZHC 1232
Decision Date: 31 May 2022

CaseChat Overview and Summary

The High Court of New Zealand heard a case involving Grant Blake, the plaintiff, and his son, Kael Earle James Blake, the first defendant, along with Kael Blake Homes Limited, the second defendant. The plaintiff sought an interim injunction to prevent the defendants from evicting him from his long-term residence at 36 Cleland Crescent, Naenae. The plaintiff, aged 67 and in poor health, claimed an agreement with his son allowed him to remain in the property for life, with an increased rental of $420 per week. The first defendant, however, argued that he was merely exercising his rights under a tenancy agreement to terminate the tenancy and had initiated proceedings with the Tenancy Tribunal for eviction.

The court needed to decide whether to grant an interim injunction based on three principles: the existence of a serious question to be tried, the balance of convenience, and the overall justice of the situation. The court found that the plaintiff's claims, if proven, raised serious legal issues in both contract and equity. The balance of convenience leaned towards maintaining the status quo until the full case could be heard, given the plaintiff's age, health, and lack of alternative accommodation. Additionally, the defendants' position would not be irreparably harmed by the injunction, as they would still need to go through the Tenancy Tribunal for a formal eviction order.

The court concluded that the plaintiff had met the necessary criteria for an interim injunction. It granted the injunction, restraining the defendants from evicting the plaintiff from the property at 36 Cleland Crescent, Naenae, until further order of the court. The court directed the defendants to file their defence and supporting affidavits within 10 days and scheduled a half-day hearing, requiring each party to submit a synopsis of their legal submissions with supporting authorities three working days before the hearing.

Orders