Gulley v Payless Sports Cars Limited
[2018] NZHC 1359
•8 June 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-003028
[2018] NZHC 1359
UNDER the Property Law Act 2007 BETWEEN
PATRICIA ELLA GULLEY AND STEPHEN JOHN GULLEY
Plaintiffs/Applicants
AND
PAYLESS SPORTS CARS LIMITED
First Defendant/First Respondent
MOHAMMED USMAN also known as RICKY KALAM
Second Defendant/Second Respondent
Hearing: 8 June 2018 Appearances:
C F Godinet for Plaintiffs/Applicants
No appearance for Defendants/Respondents
Judgment:
8 June 2018
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 8 June 2018 at 4.45pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
Moody & Gulley/C F Godinet, Auckland Copy to: Mr S Teepu
GULLEY v PAYLESS SPORTS CARS LIMITED [2018] NZHC 1359 [8 June 2018]
Introduction
[1] The plaintiffs seek an order for possession of a property known as Unit A, 13 Saleyards Road, Otahuhu, an order that a deed of lease of the property to the first defendant dated 15 March 2013 is cancelled, and orders requiring the first and second defendants to pay rent, outgoings, costs and interest payable under the lease, including GST where applicable, to the plaintiffs.
Procedure
[2] The application was filed on 18 December 2017. It was served on the defendants on 5 January 2018.
[3] The matter was called before Muir J on 15 February 2018. The second defendant, Mr Usman, appeared. No formal steps had been taken by Mr Usman or by the first defendant, Payless Sports Cars Ltd. Muir J set the matter down for a one day hearing on 8 June 2018, and made various timetable orders. Inter alia, he required the defendants to file and serve their notices of opposition and supporting affidavits by 15 March 2018. He also required the respondents to file and serve their submissions in opposition to the application one week prior to the hearing date.
[4]No steps were taken by the defendants. No extension of time was sought.
[5] On 15 May 2018, Muir J directed that the matter should be set down for formal proof, also on 8 June 2018.
The hearing
[6] The matter was called before me this morning. Mr Usman was in Court, but he did not seek to enter an appearance. Rather, a Mr Teepu, purporting to appear on behalf of the defendants, sought to be heard. Mr Teepu had sent to the Registry a lengthy document dated 7 June 2018 seeking to raise Māori sovereignty issues.
[7] I declined to hear from Mr Teepu. First, the defendants had not filed notices of opposition and they had no right of audience before the Court. Secondly, Mr Teepu is not a solicitor and he had no right to appear on behalf of the defendants in any event.
Thirdly, the papers which Mr Teepu handed to the Registry on 7 June 2018 are not in proper form. They were not accepted for filing. They were not served on the plaintiffs. Fourthly, the papers handed to the Registry do not raise any issue which could possibly have affected the outcome of the application.
[8]I proceeded to hear the matter by way of formal proof.
Analysis
[9] The plaintiffs have filed two affidavits – both by Bruce Gulley. He annexes a copy of the lease to his first affidavit. The plaintiffs were the lessor and the first defendant was the lessee. The lease was for a term of four years and one week, commencing on 24 December 2012. The rent was initially fixed at $46,000 per annum, including GST, and it was to rise progressively over the term of the lease. It was to be $48,000 (including GST) in 2014, $51,750 (including GST) in 2015, and
$55,200 (including GST) in 2016. The lessee was also liable for outgoings. There was a default interest rate of 16 per cent on outstanding payments.
[10] The second defendant, Mr Usman, guaranteed the first defendant’s obligations under the lease.
[11] From the outset, the first defendant breached the lease. It failed to pay the rent and outgoings in accordance with the lease agreement.
[12] Mr Usman made a number of promises that the rent would be paid. He signed an undertaking to make the required payments.
[13] Notices were issued to the first defendant in accordance with the Property Law Act 2007 on 11 November 2016. The first defendant did not remedy the defaults.
[14] In his most recent affidavit, Mr Gulley has itemised the rental outstanding as at 8 June 2018. Total rent, outgoings and interest under the deed of lease amount to
$132,748.89.
[15] Pursuant to the lease, the first defendant, and Mr Usman as guarantor, also agreed to pay the plaintiffs’ legal costs (as between solicitor and client) of, and incidental to, the enforcement or attempted enforcement of their rights as landlords.
[16] The landlord’s legal costs to its solicitor’s total $15,984.15. Counsel’s costs are $3,737.50 – a total of $17,721.65. In addition, the plaintiffs have incurred Court costs totalling $1,820.
[17]There is no defence offered to the plaintiffs’ application.
[18]I am satisfied that it is appropriate to make the orders sought by the plaintiffs
– with one exception.
[19]I give judgment in favour of the plaintiffs as follows:
(a)There is an order that the first defendant yield up possession of the property at Unit A, 13 Saleyards Road, Otahuhu;
(b)There is an order that the deed of lease dated 15 March 2013 in respect of Unit A and accessory Unit AU1 at 13 Saleyards Road, Otahuhu, being the land comprised and described in Certificate of Title NA56D/742, North Auckland Registry, is cancelled;
(c)There is an order requiring the first and the second defendant to pay rent, outgoings, costs and interest to the plaintiffs as follows:
(i)Rent and outgoings as at 8 June 2018: $132,748.89;
(ii)Legal costs as at 8 June 2018: $17,721.65; and
(iii)Court costs: $1,820.
[20] The plaintiffs also sought an order that the first and second defendants pay reasonable compensation, in an amount yet to be determined, for breaches of the lease.
The plaintiffs say that upon re-entry to the premises, they will assess the costs of repair, and then seek to recover those sums as well.
[21] I raised whether or not it was appropriate to make an order in this regard with Mr Godinet for the plaintiffs. He accepted that there are difficulties, given that the anticipated losses have not been quantified. Accordingly, I decline to make a separate order in this regard.
Wylie J
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