College Property Holdings NZ Limited v Estate of Whittle

[2019] NZHC 2475

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000366

[2019] NZHC 2475

BETWEEN

COLLEGE PROPERTY HOLDINGS NZ LIMITED
Applicant

AND

THE ESTATE OF MICHAEL NASH WHITTLE

First Respondent

THE ESTATE OF DIANE LYNDSEY WHITTLE

Second Respondent

MATTHEW SCOTT WHITTLE

Third Respondent

Hearing:

30 September 2019

Appearances:

H McIntosh for the Applicant

No appearance for First Respondent No appearance for Second Respondent Third Respondent in person

Judgment:

30 September 2019

ORAL JUDGMENT OF DOOGUE J

[1]    On 14 August 2019, Nation J considered the originating application in this matter.  The  applicant  applied  for  orders  cancelling  a  lease  for  a  property  at  30 Charles Upham Avenue,   Christchurch   (the    Property),    and    granting College Property Holdings (CPH)   possession    of    the    Property    pursuant    to ss 244 and 251 of the Property Law Act 2007. Nation J extensively reviewed the unfortunate history of this matter so far as the Property is concerned and so far as the

COLLEGE PROPERTY HOLDINGS NZ LIMITED v WHITTLE [2019] NZHC 2475 [30 September 2019]

family circumstances of the Whittle family are concerned post their parents’ and, in particular, their father’s death. I need not traverse the same history.

[2]    In response to the fulsome orders and directions made on that date, some family members have attended Court today: they are Carmel, David and Matthew Whittle. All relevant persons whom Nation J directed be served have been served and proof of service is before the Court.

[3]    Of particular importance, given the attendance of members of the Whittle family today, are the directions contained at [15] of Nation J’s judgment. They provided the pathway by which the family could seek relief. That was to seek a variation of the orders for cancellation and possession and, in particular, that any persons applying for variation of the orders should include proposals as to how the arrears of rent and rates would be paid and whom would take the assignment of the lease.

[4]    I acknowledge that the members of the family who have appeared and by indirect means filed affidavits before this Court are without legal representation. I have afforded them the opportunity to address the Court and sadly, through no fault of their own, they appear to have misconstrued the proceeding and their ongoing involvement in it. It is evident that apart from Matthew, the family would be supportive of Carmel Whittle being granted rights of administration of the estate, but nothing in what I have read or heard from the family critically addresses how it is that they could meet any arrears of rent and rates, nor whom would take the assignment of the lease in respect of the Property.

[5]    That being the position, the default orders made and suspended by Nation J until tomorrow will in fact be given effect on that date, namely:

(a)that  L773216.1,  dated  21 November 1987,  as  varied  relating  to  30 Charles Upham Avenue, Christchurch (the Property) is cancelled; and

(b)the applicant is granted possession of the Property.

[6]There will be no order for costs.

Doogue J

Solicitors:
Van Aart Sycamore Lawyers, Dunedin