Godzone (2011) Limited v Chew - [2012] NZHC 2082

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-003290 [2012] NZHC 2082

UNDER the Property Law Act 2007

IN THE MATTER OF an originating application for relief against proposed cancellation of a lease pursuant to s 253 of the Property Law Act 2007

BETWEEN GODZONE (2011) LIMITED Applicant

ANDTHENG HOK CHEW AND WAI LOONG ANDREW FONG AS TRUSTEES OF THE CAROL CHEW FAMILY TRUST Respondents

Hearing: 16 August 2012

Counsel: C P Merrick for the Applicant
J A Wickes for the Respondents

Judgment: 16 August 2012

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:
Mr N A Speir, Rice Craig, Solicitors, Papakura
Mr A Loo, Loo & Koo, Solicitors, Auckland
Counsel:
Mr C P Merrick, Barrister, Auckland
Ms J A Wickes, Loo & Koo, Solicitors, Auckland

GODZONE (2011) LIMITED V CHEW AND FONG AS TRUSTEES OF THE CAROL CHEW FAMILY TRUST HC AK CIV-2012-404-003290 [16 August 2012]

[1] The applicant is the tenant of four floors of a commercial building in Auckland. The respondent landlord issued a notice under the Property Law Act 2007 (the Act) for non-payment of rent and other sums said to be due under the lease. The tenant has applied under s 253 of the Act for relief against cancellation.

[2] The application was made on 8 June 2012. On 20 June 2012 an interim order was made by this Court restraining the landlord from taking any steps to cancel. Since then the following payments have been made by the tenant in respect of some of the sums claimed in the Property Law Act notice:

(a) On 29 June 2012 the tenant paid arrears of rent of $81,458.37.

(b)On 6 July 2012 the tenant paid the landlord $44,174.34 for outstanding charges for water services. This was in accordance with a further direction of the Court made on 5 July that this particular sum be paid by 6 July. (On that date the Court also extended the interim order restraining the landlord.)

[3] There was a claim by the landlord for $19,494.33 for insurance contributions said to be due from the tenant. It is now accepted by the landlord that the tenant’s liability was in fact met by a payment made to a real estate agent in January 2012. This is therefore no longer in issue although the landlord, perhaps with some justification, notes that it would have materially assisted if the landlord had been directly told that this payment had been made, and certainly by the time the Property Law Act notice was issued.

[4] There are four remaining claims by the landlord which have not been met by the tenant. Having heard from both counsel on these particular claims, and in respect of which there was agreement as to the legal principles although some differences as to what directions should then follow, I deal with these four items in the next paragraphs.

[5] The landlord claims $10,708.80 for work on the lift in the building. The tenant contends that there is a properly founded dispute as…

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: [2012] NZHC 2082
Decision Date: 16 August 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Godzone (2011) Limited, the tenant of four floors of a commercial building in Auckland, applied for relief against the cancellation of their lease under s 253 of the Property Law Act 2007. The respondents, Theng Hok Chew and Wai Loong Andrew Fong as trustees of the Carol Chew Family Trust, issued a notice for non-payment of rent and other sums due under the lease. The primary legal issue before the Court was whether the tenant's admitted defaults warranted relief against the consequences of the defaults under the Property Law Act 2007.

The Court found that the tenant had made significant payments towards the sums claimed by the landlord, including arrears of rent and outstanding charges for water services. However, there were four remaining claims by the landlord which had not been met by the tenant. The Court considered the legal principles surrounding these claims and directed that certain payments be made by the tenant as a condition of granting relief against cancellation. The Court also ordered that the tenant pay the remaining sums, including penalty interest and legal costs, by a specified date.

The Court acknowledged that the tenant had sought relief against the consequences of their admitted defaults. However, the Court found that the landlord was entitled to costs on a 2B basis in respect of the opposition to the application and the various hearings. The Court emphasised that the tenant must continue to meet its obligations under the lease in respect of the various payments which had been in contention. The Court thanked both counsel for their helpful and constructive submissions.

Orders