Enviro Waste Services Ltd v Remediation (NZ) Ltd - [2021] NZHC 3270

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001225

[2021] NZHC 3270

IN THE MATTER OF an originating application under Part 19 of the High Court Rules

BETWEEN

ENVIRO WASTE SERVICES LIMITED

Applicant

AND

REMEDIATION (NZ) LIMITED

Respondent

Hearing: 22 November 2021

Appearances:

G Williams and T Lindsay for Applicant J Maassen and D Brabant for Respondent

Judgment:

1 December 2021

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 1 December 2021 at 2.00 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Lindsay & Francis/G Williams, Auckland Willis Legal, Napier/J Maassen, Wellington

ENVIRO WASTE SERVICES LTD v REMEDIATION (NZ) LTD [2021] NZHC 3270 [1 December 2021]

Introduction

[1] The applicant, Enviro Waste Services Ltd (“ESL”), has filed an originating application pursuant to s 251 of the Property Law Act 2007 seeking an order for possession of that part of the property situated at 75-81 Truman Lane, Mt Maunganui (the “Te Maunga property”) as is occupied by the respondent, Remediation (NZ) Ltd (“Revital”).1 In the alternative, ESL seeks an order for possession under the inherent jurisdiction of the Court.

[2] The originating application is opposed by Revital. It has filed a number of competing applications:

(a)on 26 July 2021, it sought a stay of ESL’s originating application and an order requiring the provision of an unredacted copy of the lease of the Te Maunga property between ESL and the Tauranga City Council (the “TCC”); and

(b)on 29 September 2021, it sought that ESL file a statement of claim and that ESL’s originating application be consolidated with separate proceedings it has filed.

[3] Revital also gave notice that it required ESL’s witnesses for cross-examination. ESL then filed an application seeking to set aside this notice.

Background

[4] In 2017, the TCC granted a lease of the Te Maunga property to Revital. The lease commenced on 1 June 2017. It had a final expiry date of 30 June 2018 and there was no right of renewal. However, on 30 January 2018 the lease was varied and the term was extended to 29 February 2020. There was a further variation on 28 November 2019 extending the term for a further 12 months to 28 February 2021.

1 Remediation (NZ) Ltd trades as Revital Fertiliser and it is referred to in this judgment as “Revital”.

[5] Revital’s core business involves the composting of organic waste into compost and vermicast. It used the Te Maunga property to carry out its green and food waste processing operations in the Tauranga area.

[6] The TCC and an adjoining council – the Western Bay of Plenty District Council (the “WBPDC”) – were proposing to put out for tender the various contracts for their refuse and waste collection and processing services. ESL and Revital became aware of this and there were preliminary discussions between them as to how they might provide the green and food waste processing services that, amongst…

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.

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Details

Case: [2021] NZHC 3270
Decision Date: 1 December 2021

CaseChat Overview and Summary

Enviro Waste Services Ltd (ESL) has filed an originating application under s 251 of the Property Law Act 2007 seeking an order for possession of that part of the property situated at 75-81 Truman Lane, Mt Maunganui (the "Te Maunga property") as is occupied by Remediation (NZ) Ltd (Revital). In the alternative, ESL seeks an order for possession under the inherent jurisdiction of the Court. Revital opposes the originating application and has filed a number of competing applications, including seeking a stay of ESL's originating application and an order requiring the provision of an unredacted copy of the lease of the Te Maunga property between ESL and the Tauranga City Council. ESL has also applied to set aside Revital's notice requiring cross-examination of its witnesses. The Court must decide whether Revital's applications should be granted and whether ESL is entitled to possession of the Te Maunga property. The Court declines Revital's applications and grants ESL's originating application. The Court finds that Revital is not entitled to remain in occupation of the Te Maunga property and orders it to vacate the property and deliver up vacant possession to ESL within 14 days of the date of delivery of the judgment. The Court orders that ESL is entitled to its costs and reasonable disbursements.

Orders