GP 96 Limited v FM Custodians Limited HC Christchurch CIV-2011-409-000627 - [2011] NZHC 1497

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2011-409-000627

BETWEEN GP 96 LIMITED Plaintiff

ANDFM CUSTODIANS LIMITED Defendant

CIV-2010-409-002222

AND IN THE MATTER OF an Application under s 244 of the
Property Law Act 2007

BETWEEN FM CUSTODIANS LIMITED Applicant

ANDLIVINGSPACE PROPERTIES LIMITED (IN RECEIVERSHIP)
First Respondent

ANDGP 96 LIMITED Second Respondent

Hearing: 12 October 2011 (Heard at Ashburton)

Appearances: A J Forbes QC for Plaintiff/Applicant
P F Whiteside for Defendant/Respondents

Judgment: 12 October 2011

JUDGMENT OF WHATA J

Solicitors:
Canterbury Legal Services Ltd, PO Box 22-115, Christchurch 8142
Wynn Williams & Co., PO Box 4341, Christchurch 8140
Copy to:
A J Forbes QC, PO Box 2929, Christchurch 8140

GP 96 LIMITED V FM CUSTODIANS LIMITED HC CHCH CIV-2011-409-000627 12 October 2011

[1] This is an application for access to premises by GP96 Ltd, the plaintiff in this proceeding. The details of the access sought are set out in the application.

[2] The background is usefully detailed in the judgment of Chisholm J dated 24

May 2011. For present purposes the key facts are:

(a) The plaintiff claims that it is an assignee of the lease over property at

96 Litchfield Street, comprising a five-level building which appears to have been erected during the 1940s. It is located within the CBD and provides economy level accommodation by way of 110 rooms, up to
220 guests both long and short term can be accommodated.

Significant parts of the building were sublet (―the property‖).

(b) The defendant is a trustee for a mortgagee, Canterbury Mortgage

Trust.

(c) The property has been damaged by earthquakes and is currently located within the Red Zone.

(d)The defendant claims to be a mortgagee in possession and this is disputed by the plaintiff.

(e) In May the plaintiff obtained an interim injunction on the following terms:

3. The following orders were made:

(a) the defendant is prohibited from demolishing, selling or leasing the building at 96 Litchfield Street, Christchurch until the substantive matter is heard or until further order of the Court.

(b) the defendant shall pay the costs to the plaintiff on a 2B
scale plus disbursements as specified in the schedule attached hereto.

(f) Since that judgment the defendant has received income in respect of the property.

(g)There has been further damage to the premises, especially as a consequence of the 13 June earthquakes with damage assessed up to
65 per cent.

(h)There have been various proposals for access but no agreement has been reached on that.

Basis for plaintiff ’s application

[3] The plaintiff contends:

(a) The judgment of Chisholm J does not address possession or access.

(b)Status quo ante should prevail, namely prior to the claimed possession by the defendant.

(c) The defendant is in de facto possession only.

(d)The plaintiffs and subtenants could resume their hotel and hospitality businesses at the premises.

(e) They wish to seek access for the purposes of:

Ensuring that the premises are properly cleaned

Commencing repair work so that the plaintiff’s businesses can

reopen

Checking on…

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 GP 96 Limited v FM Custodians Limited HC Christchurch CIV-20...

Details

AGLC: GP 96 Limited v FM Custodians Limited HC Christchurch CIV-2011-409-000627 [2011] NZHC 1497
Case: [2011] NZHC 1497
Decision Date: 12 October 2011

CaseChat Overview and Summary

GP 96 Limited, the plaintiff, filed an application for access to premises against FM Custodians Limited, the defendant, in the High Court of New Zealand. The plaintiff claimed to be the assignee of the lease for a five-level building at 96 Litchfield Street, Christchurch. The defendant, acting as a trustee for a mortgagee, contested the plaintiff's claims, asserting possession of the property and rejecting the plaintiff's proposal for access. The plaintiff sought access for various purposes, including cleaning, repair work, and inspecting the premises' condition, while the defendant opposed the plaintiff's request, citing the property's location in the Red Zone and the additional damage caused by the 13 June 2011 earthquake.

The court examined the legal issues surrounding the plaintiff's request for access to the premises, considering the defendant's possession of the property and the seriousness of the plaintiff's case. The court held that the previous judgment did not preclude a refinement of the orders made, as circumstances can change to require a fresh look at the scope of relief. The court balanced the relative costs and benefits to the parties, noting that the defendants raised practical issues but that there would be no adverse effect on the defendant's position if access were granted to the plaintiff subject to conditions. The court granted the plaintiff access for inspection purposes, subject to specific conditions, and awarded costs in favor of the defendants on a 2B basis, reduced by one-tenth to account for the plaintiff's partial success.

The court's decision granted the plaintiff access to the premises for inspection purposes, subject to specific conditions, and awarded costs in favor of the defendants on a 2B basis, reduced by one-tenth. The court emphasized that the granted access did not confer a right of occupation for any purpose, including repairs, and that the plaintiff could not remove any items from the premises without the approval of the mortgagee in possession. The court also allowed the parties to return for further direction or clarification of the orders relating to access if needed.

Orders