Far North District Council v Rightside Properties Limited - [2013] NZHC 2

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2012-488-881 [2013] NZHC 2

UNDER the Building Act 2004

IN THE MATTER OF an application for an injunction under the
Judicature Act 1908

BETWEEN FAR NORTH DISTRICT COUNCIL Applicant

ANDRIGHTSIDE PROPERTIES LIMITED First Respondent

ANDNEAL ALAN SUMMERS Second Respondent

ANDCAMERON ENTERPRISES LIMITED Third Respondent

ANDFRANCES ROSE MACCULLOCH Fourth Respondent

Hearing: 7 January 2013 (at Auckland)

Appearances: J F Verry and B E McDonald for the Applicant

No appearance for First or Second Respondent
Fourth Respondent (F R MacCulloch) in person and informally on behalf of the Third Respondent

Results Judgment: 7 January 2013

Reasons: 8 January 2013

REASONS JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 8 January 2013 at 5.00 p.m.
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Counsel:

J F Verry, Email: John.verry@fndc.govt.nz

B E McDonald. Email: brigid.mcdonald@dlapf.com

Copy to:
F R MacCulloch. Email: adzltd@xtra.co.nz

Introduction

[1] The Kaikohe Hotel, situated at 67 Broadway, Kaikohe, is a wooden two-storey building occupied by a business which operates a pub and poker machines and provides accommodation services for permanent and temporary residents. It is in a state of significant disrepair, partial demolition, and renovation.

[2] The applicant (the plaintiff in the substantive proceeding) says the hotel is a fire hazard which represents a significant risk to the safety of pub patrons, on-site management, permanent residents, and backpackers who use it for temporary accommodation. The applicant applies for interim orders directing the immediate closure of the building and the taking of steps to ensure no person has access to it until the further order of the Court.

[3] After an urgent hearing at which one of the respondents appeared in person, I issued interim orders, including one requiring the respondents to prevent access to the building until further order of the Court (a mandatory rather than prohibitory order).1 These are my reasons.

Background

[4] The first respondent occupies the building and is the licence holder under the Sale of Liquor Act 1989. The second respondent is a director of that company and the holder of the manager’s certificate under the Sale of Liquor Act. The third respondent owns the property and the fourth respondent, Ms MacCulloch, is a director of that company.

[5] Affidavit evidence filed by the applicant indicates that the hotel has had compliance issues since at least 2008, including unauthorised building work, unconsented demolition work, and a failure to obtain valid building warrants of fitness.

[6] A routine inspection report in respect of the automatic fire sprinkler system of 7

November 2012 revealed that issues with the sprinkler system dated back to August 2010. The report noted the following significant deficiencies which, in the opinion of the report

writer, would lead to a significant probability of system failure and required urgent attention:

1 Far North District Council v Rightside Properties Limited [2013] NZHC 1.

[a] Sprinkler protection was required beneath the canopy adjacent to the stairs in the front reception area.

[b] A…

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: [2013] NZHC 2
Decision Date: 8 January 2013

CaseChat Overview and Summary

The case before the High Court of New Zealand, Whangarei Registry, involved the Far North District Council seeking an injunction against Rightside Properties Limited, Neal Alan Summers, Cameron Enterprises Limited, and Frances Rose MacCulloch. The Council sought to have the Kaikohe Hotel, located at 67 Broadway, Kaikohe, closed and inaccessible due to significant disrepair and fire hazards. The primary legal issues included whether the Council had standing to bring a negligence claim and whether the court should exercise its inherent jurisdiction to protect public safety from the respondents' non-compliance with statutory obligations. The court examined the evidence and concluded that while the Council's negligence claim was not sufficiently strong, there was a compelling case for the court to intervene under its inherent jurisdiction to address the public safety risks posed by the respondents' failure to comply with statutory requirements.

The court issued interim orders requiring the respondents to prevent access to the Kaikohe Hotel until further order of the court, except for those undertaking authorised remedial works. The reasoning behind this decision was rooted in the significant fire hazards present in the building, as highlighted by various reports, and the respondents' history of non-compliance with statutory obligations. The court determined that the overall justice of the case required the making of these orders to protect public safety, despite the inconvenience to occupants of the hotel. The court also reserved the right for all parties to apply to set aside or vary the orders on three days' notice and did not make any order for costs at that stage.

Orders