Cunningham v Butterfield - [2012] NZHC 614

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV2011-476-000400 [2012] NZHC 614

BETWEEN NEVILLE JOHN CUNNINGHAM Plaintiff

ANDJOSEPH GORDON BUTTERFIELD & ORS
Defendants

Hearing: 13, 14, 15 & 17 February 2012 (Heard at Christchurch)

Counsel: N Till QC and WNP van Vuuren for Plaintiff
P Whiteside for Defendants

Judgment: 3 April 2012

JUDGMENT OF WHATA J

[1] Neville Cunningham runs a big game hunting trophy business on the Station Trophy Block of Mt Cook Station. Donald “Mt Cook” Burnett owned Mt Cook station until his death in July 2010. Mr Burnett’s trustees believe that Mr Cunningham breached his lease to occupy Mt Cook Station by failing to remove stock from all paddocks except Station Trophy Block. Notice of intention to cancel the lease and then a notice to re-enter and cancel were served on Mr Cunningham. The validity of these notices is challenged by him. Mr Cunningham said that he did remove the stock as required by a settlement deed entered into by him and the trustees. Finally, he says that, in any event breach of deed did not confer a right on the trustees to cancel the lease in relation to Station Trophy Block as the alleged breach does not concern that block. He says that the notice of intention to cancel was fundamentally flawed because it wrongly refers to two leases and does not properly particularise the alleged defaults.

[2] The factual disputes between the parties are many and varied. But the essence of the case concerns whether Mr Cunningham failed to remove the stock as

CUNNINGHAM V BUTTERFIELD & ORS HC TIM CIV 2011-476-000400 [3 April 2012]

required by the settlement deed. If so, I must then consider whether the trustees have the power to cancel the lease over the Station Trophy Block and whether they have exercised the power to give the notice of cancellation validly. If I get that far, I must consider whether there should be relief from cancellation.

Background

[3] A deed of agreement executed by the parties in December 2010 (“Settlement Deed”) is the focal point of this litigation. But that deed purports to resolve a dispute relating to prior agreements between Mr Cunningham and Mr Burnett concerning Mt Cook Station and the adjacent parcel of land, known as Cox’s Downs. To make sense of the Settlement Deed it is necessary to describe the preceding agreements and the events leading up to the Settlement Deed.

The first lease1

[4] Mt Cook Station is a hill country station of some 500 hectares, spanning river flats, flat paddocks, hill country and mountain terrain. In 2004 Mr Cunningham entered into a 12 month agreement to lease Mt Cook Station from Mr Burnett. The lease contemplates completion of deer fencing of Joe’s Paddock and Cow Paddock. Initially a stock limit of 200 elk was imposed, to be carried through the winter. Rental was set at $12,000 plus GST per annum.

[5] Mr Cunningham was allowed to bring hunters onto the property for trophy shooting purposes.…

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 Cunningham v Butterfield

Details

AGLC: Cunningham v Butterfield [2012] NZHC 614
Case: [2012] NZHC 614
Decision Date: 3 April 2012

CaseChat Overview and Summary

Cunningham v Butterfield was a dispute between Neville John Cunningham, who operated a big game hunting trophy business, and the trustees of the estate of Donald "Mt Cook" Burnett, who owned Mt Cook Station until his death in 2010. The trustees claimed that Cunningham had breached his lease by failing to remove stock from all paddocks except Station Trophy Block. Cunningham argued that he had removed the stock as required by a settlement deed, and that the trustees' notices to cancel the lease were invalid. The court had to decide whether Cunningham breached the lease, if the trustees were entitled to cancel it, and if Cunningham was entitled to relief from cancellation.

The court found that Cunningham breached the lease by failing to remove 150 hinds and their fawns from Mt Cook Station paddocks by 7 March 2011. The court rejected Cunningham's arguments that poor fencing, interference by the trustees, or a short-term plan should excuse his failure to remove the stock. The court also found that the trustees were entitled to cancel the lease for breach of the removal clause, despite the changes in the leases and the doctrine of surrender and regrant. Finally, the court granted relief from cancellation, finding that Cunningham had made a significant effort to remove the stock and that the loss of the lease would have a disproportionate impact on him. The court ordered the parties to file submissions on other relief and costs within 14 days.

Orders