Catholic Diocese of Auckland v Hato Petera Limited

[2017] NZHC 1957

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-001777 [2017] NZHC 1957

BETWEEN

CATHOLIC DIOCESE OF AUCKLAND

Plaintiff

AND

HATO PETERA LIMITED First Defendant

OCCUPANTS OF PROPERTY AT 35

AKORANGA DRIVE, NORTHCOTE Second Defendants

Hearing:	16 August 2017
Appearances:	M V Robinson and N M Thompson for Plaintiff J M Skinner for First Defendant No appearance for Second Defendants
Judgment:	16 August 2017

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 16 August 2017 at 3.30 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

CATHOLIC DIOCESE OF AUCKLAND v HATO PETERA LTD & ORS [2017] NZHC 1957 [16 August 2017]

Introduction

[1]      The Catholic Diocese of Auckland owns a property at 35 Akoranga Drive, Northcote, known as the Whakaruruhau.  The Whakaruruhau has no current building warrant of fitness (BWoF) and the Diocese is concerned that its current condition poses a serious fire risk to any occupant.

[2]      At one time the first defendant, Hato Petera Ltd (HPL), lawfully occupied the Whakaruruhau but the Diocese asserts that it no longer has any right to do so.  The Whakaruruhau is currently occupied by the second defendants, whose identities are unknown, apparently pursuant to an agreement with HPL.  The Diocese applied for interim relief in the form of a declaration and mandatory injunction requiring the defendants to deliver up vacant possession.

[3]      HPL initially opposed the application on the ground that it received verbal assurances that the previous lease to the trust would continue uninterrupted in favour of HPL.  However, HPL appeared at today’s hearing by its solicitor, Mr Skinner, who confirmed that HPL consented to orders being made in the form sought.  The second defendants  have  taken  no  steps  and  did  not  appear.    The  Diocese  tendered  an affidavit of service of the second defendants and sought orders against them in the same form.

[4]      Having already considered the papers filed in support of the application and having heard from Mr Robinson for the Diocese, I made the following orders, with reasons to follow:

(a)      There is a declaration that the plaintiff is entitled to vacant possession of  the  property  at  35  Akoranga  Dr,  Northcote,  Auckland  (the property);

(b)The first and second defendants and/or any other occupants of the property must forthwith vacate and deliver up possession of the property to the plaintiff and/or its appointed agents.

[5]      I directed that  the matter  is  to  be listed  again  in  the duty judge list on

24 August 2017. Any issue as to costs can dealt with then.

The application for interim relief

Relevant principles

[6]      The approach to determination of an interim injunction application is well settled.  It is for the applicant to demonstrate that there is a serious question to be tried and that the balance of convenience favours it, at which point it is then for the Judge to make an assessment of the overall justice of the position.1

[7]      The  order  sought  by  the  Diocese  that  the  defendants  and/or  any  other occupants  of the property forthwith  vacate and  deliver up  possession of it  is a mandatory injunction that requires both HPL and the current occupants to take steps rather than relief that simply requiring the cessation of conduct.   The approach to such  an  application  is  summarised  by  Megarry  J  in  Shepherd  Homes  Ltd  v

Sandham:2

… On motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction.   In a normal case the Court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly  granted;  and  this  is  a  higher  standard  than  is  required  for  a prohibitory injunction.

Serious question to be tried?

[8]      For many years the Whakaruruhau was occupied by the Te Whanau O Hato Petera Trust as a boarding facility for students of Hato Petera College and later as rental accommodation for AUT students, initially pursuant to lease and from mid-

2015 pursuant to an agreement to occupy.3   The trust was dissolved in mid-2016 and,

with the Diocese’s consent, Hato Petera Ltd (HPL) took over occupation of the property, on terms to be agreed.  However, terms never were agreed. The Diocese required HPL to vacate the property, initially by the end of February 2017 but that

date was later extended to 7 July 2017. The letter recording the position stated that:

1      NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90.

2      Shepherd Homes Ltd  v  Sandham  [1971]  CH  340  at  351,  cited  with  approval in  Locavail International Finance Ltd v Agroexport [1986] 1 WLR 657 (CA), which was followed in New Zealand in Precast NZ Ltd v Anystep Ltd [2016] NZHC 377 at [44].

3      The lease encompassed both the Whakaruruhau and properties situated nearby on College Rd but the application is not concerned with those properties.

Neither HPL or anyone other than [the Diocese] has any rights to occupy Whakaruruhau or any other part of the Catholic Diocese’ property. Nevertheless, you have requested that Whakaruruhau not be required to be vacated until 7 July 2017.

We are instructed that our client will take no further steps to obtain vacant possession of Whakaruruhau before 7 July 2017 but strictly on the basis that:

(a)       All occupants of Whakaruruhau (yourselves included) must vacate

Whakaruruhau by 7 July 2017;

(b)      In the meantime our client will have full access to Whakaruruhau during the period until 7 July 2017; and

You are to advise the students of our client’s requirements that they have

vacated Whakaruruhau by 7 July 2017 …

[9]      HPL did vacate the property on 7 July 2017.  However, a number of people then took  up  occupation  of the property,  apparently with  the knowledge  and/or agreement of HPL.  The Diocese has made unsuccessful efforts to have the unknown occupants vacate the building.  There is evidence of the occupants ignoring attempts to contact them on visits, closing curtains, locking doors and not answering knocking at the doors.

[10]     On 5 July 2017, shortly before HPL vacated the Whakaruruhau, the Diocese learned the building’s BWoF had expired in January 2017.   On 26 July 2017 it arranged for a building inspection.  The report of that inspection identified serious issues, particularly regarding fire safety.  These included the lack of any automatic smoke detection system and the fact that most of the final exits of the building had been sealed. The report concluded that:

This property currently does not meet the requirements of the Building Act

2004 in relation to the Building Warrant of Fitness (BWoF). The intention of the BWoF is to ensure the safety of the occupants of a building.  From our

site inspection, we believe that this building should be vacated until the

deficiencies identified in our report are rectified and a BWoF is issued.  Due to people sleeping in this building, the lack of automatic smoke detection

and  the  blocked,  locked  or  barred  Exit  doors,  we  believe  there  is  an

EXTREMELY HIGH chance that in the event of an emergency loss of life

WILL occur.

[11]     The next day the Auckland Council issued a Notice to Fix requiring the

Diocese to supply a current BWoF within 14 days.

[12]     The history of the lease to the trust and subsequent arrangements with HPL and the agreement that HPL would vacate the premises is extensively described and documented in the affidavit of Mariette van Ryn filed in support of the Diocese’ application.  The description I have given is a “potted” version.   I am satisfied that the Diocese is entitled to vacant possession.   The unknown occupants, who have taken steps to avoid engaging with the Diocese and have failed to take any steps to advance a justification for their continued occupation, have no apparent right to occupy.  At the least, there is a serious question to try but, in fact, the Diocese has reached a much higher threshold than that.

Balance of convenience

[13]     The interest of the Diocese in obtaining vacant possession of the premises was advanced on the basis of its obligations under the Building Act and the Notice to Fix.   Ordinarily, the eviction of unlawful occupants would not require an urgent response.   The  immediate  vacation  of  the Whakaruruhau  will,  inevitably,  cause disruption to those currently occupying it.  However, that inconvenience must be set against the obvious risk to those occupants from the state of the building.   The building report makes for very worrying reading.   The report writer identifies a major risk as that “this building has the potential to trap occupants during a Fire, which is likely to lead to death”.  In these circumstances any inconvenience to the occupants is far outweighed by the risk to them in remaining in the building.

Overall assessment

[14]     It is evident from what I have said above that the immediate vacation of the premises is essential for the safety of those currently occupying it.  I cannot envisage any circumstances in which at a later trial there could be any doubt that the interests of both the plaintiff and the defendants were best served by granting the relief

sought.

P Courtney J