Hall v Geary Limited
[2025] NZHC 1004
•30 April 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-002967
[2025] NZHC 1004
UNDER Part 19 of the High Court Rules 2016 and the Property Law Act 2007 IN THE MATTER OF
relief against cancellation of a lease
BETWEEN
ROBYN LEIGH HALL and
BRENDON JAMES SALISBURY MADDEN-SMITH
Plaintiffs
AND
GEARY LIMITED
First Defendant
GARY WILLIAM WHETTON
Second DefendantJANE MARGARET WHETTON
Third Defendant
Hearing: 11 March 2025 Appearances:
E Armstrong and H Ewen for the Plaintiffs H Thompson for the Defendants
Judgment:
30 April 2025
JUDGMENT OF WALKER J
This judgment was delivered by me on 30 April 2025 at 3 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors:
Lee Salmon Long, Auckland
McMahon Butterworth Thompson, Auckland
HALL & Anor v GEARY LIMITED & Ors [2025] NZHC 1004 [30 April 2025]
[1] This dispute between neighbours in a prime beachfront property on Milford Beach comes before the Court in the form of an originating application seeking relief against cancellation of a lease.
[2] The beachfront property is held in a composite freehold and leasehold title, commonly known as a “cross-lease” title. There are three apartments on the title.
[3] The plaintiffs, Robyn Hall and Brendon Madden-Smith are the registered owners of the ground floor apartment (Flat 1) in their capacity as trustees of the Hall Family Trust (the Trust). They own a one-third share of the freehold estate and are the lessees under a lease in relation to the ground floor apartment. Ms Hall lives in the apartment. She spends time in other properties and travels extensively. Mr Madden-Smith is an independent trustee of the Trust.
[4] The first defendant, Mr Geary, is a director of Geary Limited which is the registered owner of the second-floor apartment (Flat 3), owner of a one-third share of the freehold estate and lessee of the second-floor apartment. Mr Geary lives there. He was Chairman of the Owner’s Committee at the relevant time.
[5] The Whettons are the registered owners of the first-floor apartment (Flat 2) but also spend time at another property out of Auckland. They own a one-third share of the freehold estate and are lessees of the first-floor apartment.
[6] The genesis of the dispute is the placing of a “swim-spa” pool on an area in front of Ms Hall’s apartment by the plaintiffs. The area is designated as an exclusive use area for the ground floor apartment. Ms Hall deposes that she uses the swim-spa for approximately 40 minutes a day when she is at the property to do physical therapy to manage a health condition.
[7] A swim-spa is a larger than typical spa pool. It incorporates various technology to facilitate exercise including hydro-jets to enable swimming in place and a tread-mill. This swim-spa has a mechanically or hydraulically operated cover which also functions as a roof. This sits snugly over the swim-spa for safety when the swim-spa is not in use and is raised to a pre-set height when in use.
[8] The Whettons fundamentally want the swim-spa removed.1 They maintain that placing the swim-spa on the property without their consent as lessors breaches cl 10 of the cross-lease and interferes with their amenity interest. The perceived impasse led to the Whettons issuing a notice of intention to cancel the cross-lease (the PLA Notice) in reliance on s 246 of the Property Law Act 2007 (the Act) unless the swim-spa was removed from the property within 21 days.2 The parties reached an interim arrangement which required this application for relief against cancellation to be filed within a stipulated time. They have also sensibly agreed certain procedural matters including submission to this Court despite a dispute resolution clause in the lease.
[9] This application seeks relief against cancellation. The core issues are whether the swim-spa is a structure within the meaning of cl 10, the erection of which requires the prior consent of the defendants as lessors, and relatedly whether it is unreasonable on the part of the lessors/defendants to withhold their consent if so.
Summary
[10] I have found that the swim-spa is such a structure. I also find that the withholding of consent on the part of the lessors/defendants is not unreasonable. I set out my reasons below after providing background context and summary of the applicable legal principles.
Background
[11] The terms of the cross-lease are set out in a memorandum of lease (the Lease). The term is 999 years commencing on 20 November 1989.
[12]There is a Lease on materially the same terms for each of the three apartments.
[13]Clause 10 of the Lease reads:
1 Mr Geary supports the Whettons’ position and has filed an affidavit in support of their opposition, but the dispute is primarily between the Whettons and Ms Hall and Mr Madden-Smith.
2 Counsel for the Whettons emphasised that their objective is removal of the swim-spa and not cancellation of the lease, implicitly recognising that cancellation would be a disproportionate response given the consequences for a lessee and that the alleged breach can be remedied.
10. NOT TO MAKE STRUCTURAL ALTERATIONS
The Lessee shall not make any structural alterations to the said building which shall have the effect of altering the external dimensions thereof nor erect on any part of the said land any building, structure or fence without the prior consent of the Lessors first had and obtained on each occasion PROVIDED HOWEVER that such consent shall not be unreasonably withheld.
[14] Clause 24 of the Lease sets out the power of sale of the lessee’s flat by the lessors in the event of cancellation of the lease. Clause 31 provides that the owners of Flat 1 (the ground floor apartment) have the exclusive use of “Area C”. This is the area of land in front of the apartment building adjoining Milford Beach as depicted in the site diagram below.
[15] On 20 May 2024 the plaintiffs engaged Parrot Landscaping to do the preparatory landscaping works for the swim-spa. The work started in early July 2024. It is common ground that there was no communication notifying the Whettons or Mr Geary.
[16] Between 10 July 2024 and 14 August 2024, works were undertaken in the north-eastern corner of Area C. This included relocation of a section of the existing decking area, excavation and laying of a 150-millimetre thick, heavily compacted aggregate concrete pad with heavy duty steel reinforcement for the swim-spa to sit on and placing a composite decking to form a stairway with stainless steel handrail.
[17] Mr Madden-Smith deposes that he considered the installation of the swim-spa involved relatively minor preparatory works and was not a structure. Ms Hall deposes that it did not cross her mind that the installation might be in breach of the lease because she considers that the swim spa has minimal (if any) impact on the other parties in the apartments.
[18] Sometime during those works, Mrs Whetton tried to engage with the workers from Parrott Landscaping. At that time Ms Hall was away. Mrs Whetton’s evidence is that the workers told her they were under instructions not to discuss the plans but to refer all enquiries to Mr Madden-Smith.
[19] Mrs Whetton emailed Mr Geary. He forwarded that email to Ms Hall and Mr Madden-Smith on or around 26 July 2024 under cover of his own email explaining that he had become involved in his capacity as Chairman. That email indicated that the Whettons had raised concerns about the “potential impact of [the] intended structure on their view”. He wrote that he had visited their balcony and fully understood their concerns. He suggested that a face-to-face conversation and provision of detailed plans would be “very desirable” before proceeding further.
[20] Mrs Whetton’s email itself noted cl 10 of the Lease, requested plans so that the impact could be reviewed and asked that the landscaping be immediately halted.
[21] On 29 July 2024, Mr Madden-Smith responded in his capacity as trustee (of the Hall Family Trust). He confirmed that Ms Hall was away. He stated that the view of the trustees is that the works do not require the consent of the other owners and set out his reasons. He wrote:
If , after having considered this email, you do not agree with the position taken by the Trust then you are invited to give your consent. However, that invitation is made without prejudice to the position of the Trust as set out in this email.
[22] As there were no detailed plans for the work Mr Madden-Smith provided renderings from the contractor. He emphasised that the swim-spa is portable, not affixed to the ground and sited to minimise any obstruction to views, which in any event are not protected. He also explained that the automated cover was necessary to enable removal and replacement by Ms Hall, with the raised cover providing a degree of privacy for the user and screening for those above.
[23] There was no response from either Mr Geary or the Whettons. The plaintiffs say they assumed that their position that no consent was needed for the installation of the swim-spa had been accepted. The swim-spa was lifted into position by a crane on 1 August 2024. The use of a crane is said to be due to access issues onto the property rather than due to the weight of the swim-spa.
[24] The issue became a discussion point at the Annual General Meeting (AGM) of owners on 6 September 2024. Initially, Ms Hall disputed the accuracy of the minutes of the AGM (independently minuted) but at the hearing appeared to resile from that on the material points. It is unnecessary to resolve the question of exactly what was and was not said. What was clear (and on which all parties are agreed) is that the Whettons were not in favour of the installation and objected. Apart from making that position clear at the AGM, the Whettons did not seek to discuss the swim-spa with the plaintiffs and did not signal any intention to serve a PLA Notice.
[25] On 7 October 2024, Mr Madden-Smith received an email from the defendants’ solicitors attaching the PLA Notice. The Notice states:
4.The breach is capable of being remedied by the Lessees removing the swim-spa pool from the land and by compensating the Lessees for the cost of this notice in the sum of $1,500 plus GST.
5.If the breach is not remedied by the removal of the swim-spa pool from the land within 21 days after the service of this notice, that being a period which is reasonable in the circumstances, the Lessors may seek to cancel the Lease in accordance with section 244 of the Property Law Act 2007 (the Act) and may exercise any of the remedies available to them on cancellation including (without limitation) those remedies for which the Lease itself provides, such as exercising a power of sale of the Lessees’ flat under clause 24 of the Lease.
Hearing, evidence and site visit
[26] Both Ms Hall and Mr Madden-Smith filed affidavits in support of the application for relief and in reply. Mrs Whetton filed affidavits in opposition as did Mr Geary. Notices of intention to cross-examine all the deponents were served. The cross-examination was commendably focused and brief.
[27] With the consent of the parties, I made a site visit to view the swim-spa from the balconies of the first and second floor apartments. This addressed a suggestion that the photographs produced in evidence were not necessarily representative of the overall impact of the installation.
[28] After the site inspection (which followed the hearing) the parties filed a joint memorandum. It transpired that the swim-spa cover had not been raised to the full maximum height but only to a couple of centimetres below the level of full maximum height.3 Counsel conferred and agreed that they do not consider that the additional height would have materially changed the outlook from the balconies of first and second floor apartments and provided a photograph with the joint memorandum.
3 In her affidavit dated 10 December 2024, Ms Hall deposed she had been using the swim-spa with the cover partially raised (which she can control manually) in the light of the Whettons’ concerns.
Legal principles
[29] There is common ground between counsel on the applicable legal principles of interpretation of the Lease as a contract:4
(a)The proper approach is an objective one.
(b)Courts should have regard to the commercial purpose of the contract and to the structure of the parties’ bargain, to the extent that they can reliably be identified.
(c)Although it is necessary to consider the context, the text is “centrally important”.
(d)The “ordinary and natural meaning” is a powerful indicator of what the parties meant (but is not decisive).
(e)The wider context may suggest an interpretation other than the most obvious one or may assist in determining the intended meaning if there is ambiguity.
[30] Counsel also largely agree that in an application for relief against cancellation s 243 of the Act provides that relief against cancellation may only be granted in accordance with ss 253-264. Relevantly, s 256 states:
Powers of court on application for relief
(1)In determining an application for relief against the cancellation, or proposed cancellation, of a lease, under section 253, a court may grant—
(a)the relief sought on any conditions (if any) as to expenses, damages, compensation, or any other relevant matters that it thinks fit; and
4 Counsel cited Savvy Vineyards 4334 Limited v Weta Estate Limited [2020] NZSC 115, [2020] 1 NZLR 714 at [24] which summarised the principles set out by the Supreme Court in Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432.
(b)an injunction restraining any similar breach in the future.
(2)The court may grant relief against the cancellation, or proposed cancellation, of a lease even though—
(a)the cancellation is for a breach of an essential term of the lease; or
(b)the breach is not capable of being remedied.
[31] This section confers on the Court a “wide discretion subject to an assessment of proportionality”.5 In respect to this assessment both counsel referred to the non-exhaustive list of factors set out by Hammond J in Studio X Ltd v Mobile Oil NZ Limited. These include:6
(a)whether the breach was advertent or deliberately committed;
(b)whether the breach involves an immoral/illegal use;
(c)whether the lessee has made or will make good the breach of the covenant and is able and willing to fulfil his obligations in the future;
(d)the conduct of the lessor;
(e)the gravity of the breach;
(f)whether a breach has occasioned lasting damage to the lessor; and
(g)a proportionality concern — whether whatever damage is said to have been sustained by the lessor can truly be said to be proportionate to the advantages the lessor will obtain if relief is not granted.
[32] An inquiry as to whether consent is unreasonably withheld in a contractual setting generally involves a two-stage inquiry. The first stage is the actual basis for
5 Hamilton Accommodation Ltd v Yi Ming Investment Limited [2024] NZHC 1619 at [42].
6 Studio X Ltd v Mobile Oil NZ Limited [1996] 2 NZLR 697 (HC) at 701.
withholding consent and the second is as to whether that basis provides reasonable grounds for withholding consent.7 The second stage is an objective inquiry.
[33] Where counsel departed slightly was on the effect of the decision of this Court in Martelli v Liow.8 I apprehend that the difference between them may be distilled down to the degree to which the balance between the interests of lessor and lessee may have shifted by the approach in that case.
[34] Martelli was a dispute between neighbours on cross-lease sites where the lease also required consent to structural alterations which “shall not be unreasonably withheld”. It came to this Court on a question of law appeal from an arbitration award. The question of law posed was:9
…whether, in the context of cross-leases for residential properties, consent in respect of alterations will be unreasonably withheld…only where the benefit to the party seeking change will be substantial and the proposed alteration would produce only trifling detriment to the cross-lessor, as held in Smallfield v Brown...
[35] Gault J observed that it was doubtful that the statement in Smallfield v Brown10 was intended to be a statement of law of general application.11 He pointed to Fisher J’s analysis in Smallfield which referred instead to a “sufficient detriment to outweigh the corresponding benefits to the [party making the change].”12 An assessment of unreasonableness is quintessentially a fact specific assessment and is not limited to cases where the benefit to the party seeking change is substantial and the proposed alteration would produce only trifling detriment to the cross-lessor.13 Rather than constraining the factual assessment by a legal test that quantifies the extent of the benefit and the detriment in the abstract, all cross-lessors need do is act reasonably, including when taking into account their own concerns.14 That requires consideration of what the reasonable lessor would do when asked to consent in the
7 Greymouth Gas Kaimiro Limited v GXL Royalties Limited [2010] NZSC 117, [2011] 1 NZLR 289 at [10]–[11]; Louis Vuitton New Zealand Ltd v Prince’s Wharf Property Fund Ltd (2005) 5 NZ ConvC 194,073 (HC) at [30].
8 Martelli v Liow [2024] NZHC 968. Leave to appeal to the Court of Appeal has been granted.
9 At [2].
10 Smallfield v Brown (1992) 2 NZ ConC 191,110.
11 Martelli v Liow, above n 8, at [25].
12 At [25], citing Smallfield v Brown, above n 10, at 191,118.
13 At [67].
14 At [68].
particular circumstances and whether the conclusion was one that could be reached by a reasonable landlord.15
Issues
[36]Some of the pleaded grounds were not advanced by the time of the hearing.
[37]The following issues arise for determination:
(a)Is the swim-spa a structure within the meaning of cl 10 of the cross-lease?
(b)Does cl 10 require objectively reasonable grounds before consent may be withheld?
(c)Is it unreasonable for the defendants to withhold their consent?
Is the swim-spa a structure?
[38] Ms Armstrong, for the plaintiffs, submitted that the ordinary and natural meaning of a “structure” is something that is built up on the site and permanently affixed to the land. She suggested that the object erected on the land must be sufficiently significant or substantial to fall within cl 10 and to justify the input of the other owners. That is, the clause is concerned with permanent works and is intended to enable the lessor to have input in relation to additions or alternations to the land or building that will impact them. She submitted that this aligns with the commercial purpose of cl 10. It would be commercially unworkable, and unnecessary, for a lessee to be required to seek consent to erect things on the land that are insubstantial or impermanent such as a flat-pack outdoor table, a trampoline or a raised garden bed.
[39] Outside the context of cross-leases, Ms Armstrong referred to the consideration of the meaning of “structure” in the context of the Local Government (Auckland
15 At [71] citing Ashworth Frazer Limited v Gloucester City Council [2001] UKHL 59, [2001] 1 WLR 2180 at [69] and Louis Vuitton New Zealand Ltd v Prince’s Wharf Property Fund Ltd, above n 7, at [69]–[70].
Region) Reorganisation Order 1989 in Auckland City Council v Ports of Auckland Ltd.16
[40] Ms Armstrong pointed to the evidence that the swim-spa had not been built-up or constructed on site, is not affixed to the land but was placed on it, and has not been plumbed in. She argued that it should be understood as an “appliance” with wiring that can be removed and is temporary and portable. For completeness, Ms Armstrong submitted that the works surrounding the swim-spa also do not fall within the definition of structure for the purposes of cl 10 because:17
(a)The small concrete pad is only 150 millimetres thick, sits flush with the ground, and is in a space that was previously an area of decking.
(b)The swim-spa cover is not permanently fixed to the land. It is not concreted to the pad and is removable.
(c)The steps to the swim-spa are removable.
[41] Mr Thompson, for the defendants, submitted that the purpose of cl 10 is to give each flat owner a degree of control over changes made by others to the building and the land. He disputed the description of the swim-spa as being “temporary” because temporary means lasting for only a limited period. He suggested that something that is portable must be evidently able to be carried or moved, and the swim-spa is not portable in that sense.
[42] He suggested that the plain wording of cl 10 indicates that the word “structure” must be intended to include structures other than buildings, otherwise it would be redundant. The whole structure comprises a reinforced concrete pad on which is placed the swim-spa itself and the removable roof/cover as well as the steps and stainless-steel handrail shown in the photographs. Mr Thompson described it as an organisation of inter-related elements in a material object or system.18
16 Auckland City Council v Ports of Auckland Ltd [2000] 3 NZLR 614 (CA) at [64] citing R v Rose
[1965] QWN 35 (QSC) at 43.
17 I did not understand the defendants to argue separately that the concrete pad is a structure, rather that the concrete pad is to be viewed as part of the whole “structure”.
18 Oxford English Dictionary (online ed, Oxford University Press), definition of “structure”.
[43] Mr Thompson submitted that, to the extent that attachment to the land is required, a tiny home on wheels was held to be a structure under the definition in the Resource Management Act 1991 which describes a “structure” as meaning “any building, equipment, device, or other facility made by people and which is fixed to land and includes any raft.”19
[44] Mr Thompson described the swim-spa as neither insubstantial nor impermanent but similar in scale and purpose to an in-ground swimming pool. It is attached to the land by its own weight and the weight of the water in it which, according to the plaintiffs, cannot easily be drained but must be siphoned. He also disputed that cl 10 necessarily requires a structure to be permanent or fixed to the land, describing this as a “gloss” which the plaintiffs have put on the clause.
Discussion
[45] The photographs appended to this judgment show the relative size of the swim-spa.20 Having had the benefit of a site visit I am left in no doubt that it constitutes a structure.
[46] Essentially, I find that the plaintiffs’ arguments as to what constitutes a “structure”, despite their rigour, are overly narrow and technical in this context. I accept that the purpose of cl 10 is to protect lessors from unwelcome and unreasonable intrusions by the other and it would not adequately serve that purpose to adopt the narrow interpretation advanced by the plaintiffs.
[47] The most helpful observation in the Court of Appeal’s decision in Auckland City Council v Ports of Auckland Ltd, cited by the plaintiffs, is that “structure” is a word with a range of meanings and which takes its precise meaning from the context.21 In that case the Court considered the term “structure” to mean “a thing built or constructed to remain permanently in one place on the land” in the particular context of buildings that straddled the mean high-water mark boundary. Far from importing a general requirement of permanence, the decision illustrates that
19 Resource Management Act 1991, s 2(1). Beachen v Auckland Council [2023] NZEnvC 159.
20 Appendix 1 – photograph of swim-spa taken from balcony of Flat 2.
21 Auckland City Council v Ports of Auckland Ltd, above n 16, at [64].
context is everything. Further, the reference to the Queensland Supreme Court in R v Rose materially notes that the word “structure” can have the wider meaning of anything constructed out of material parts.22
[48] A common-sense approach leads to the conclusion that this substantial object made up of composite elements sitting on a concrete pad on compacted foundation with steel reinforcing is a structure within the cl 10 meaning. While I accept that it could be removed after the water is siphoned out, removal of all the elements would take a not inconsiderable effort. I reject the submission that permanence is an essential requirement in this context. But in any event, this is not temporary given Ms Hall’s intention not to remove it until she no longer has an interest in the property or should an arm’s length purchaser from the Whettons require it as a condition of sale.
[49]It follows that the consent of the defendants is required under cl 10 of the lease.
Is it unreasonable for the defendants to withhold consent?
[50] The question is whether there are objectively reasonable bases to withhold consent to the placement of the swim-spa within the exclusive use area. What is reasonable is a question of fact having regard to the purpose of the covenant in the context of the lease.23 I make this assessment against the backdrop of the plaintiffs’ position in which:24
(a)They agree to reset the swim-spa cover so that the maximum height of the cover is set at a height below the base of the Flat 2 balcony.
(b)They agree to remove the swim-spa promptly and at their costs in the event that:
(i)Ms Hall no longer holds a legal or beneficial interest in Flat 1; or
22 R v Rose, above n 16, at 43.
23 Louis Vuitton New Zealand Limited v Princes Wharf Property Fund Limited, above n 7, at [37].
24 At the hearing counsel for the Whettons expressed concern about how those conditions would be policed or enforced. They do not rule out the possibility of consenting to a smaller less intrusive structure in the future.
(ii)The Whettons sell Flat 2 to an unrelated third party on the basis that they no longer have any right to occupy Flat 2 and the buyer requires that the swim-spa is to be removed as a condition of purchase.
[51] While the plaintiffs sought consent to the works on 29 July 2024 before placement of the swim-spa on the property, this was after the preparatory works had commenced and after the Whettons expressed concern about the plaintiffs’ intentions. The request was framed in terms of a fall-back position to the primary contention that no consent was required.
[52] The Whettons’ concerns in respect of the swim-spa have been variously expressed as:
(a)A substantial intrusion on privacy.
(b)A visual intrusion from various angles.
(c)Potentially impacting on value of their property, although no advice yet sought on that prospect.
(d)Impeding or obscuring their property’s sweeping beachfront views.
(e)Adversely impacting on amenity value of their property.
[53] Ms Armstrong maintained that the suggestion of some reduction in value of Flat 2 is speculative and addressed by the proposed conditions. She contended that there is no covenant in the lease that specifically protects the views from Flat 2 and the plaintiffs could in theory plant trees along the front of the exclusive use area or erect a large sun umbrella which would similarly impede the views. She submitted that privacy rights are qualified by the fact that Flat 2 overlooks the exclusive use area and that any intrusion to their enjoyment of their flat is minimal given:
(a)The swim-spa takes up only a small area of the exclusive area being approximately 10 square metres.
(b)It is positioned to have the least impact on views.
(c)There is no interference with the interests of the lessor of Flat 3.
(d)There is no evidence that the swim-spa disrupts the views from the entire balcony nor that the swim-spa or the cover are visible at all from inside Flat 2.
(e)The swim-spa is only used for about 40 minutes each day when Ms Hall is at home, and she is often travelling.
[54] I accept that the structure has been placed with forethought about minimising its impact but having viewed the property and swim-spa, I am of the opinion that there is a strong sense of visual intrusion whether the roof is raised or lowered. The extent of the intrusion is not easily captured by the photographs in evidence. It is however readily apparent when attending in person. It is particularly obvious standing on the balcony facing North and looking along the beach. The intrusion is less about the privacy interests of the occupants of Flat 2 than it is about the impact on amenity. It alters the character and extent of the outlook in more than a trivial way.
[55] The fact that the swim-spa sits on the exclusive use area is no answer. The exclusive right to use Area C is not unqualified but subject to cl 10. Similarly, while the benefits to Ms Hall’s health are not contested, those benefits do not outweigh the adverse impact on the amenity value of the Whettons’ property. To act reasonably does not oblige them to act in a manner contrary to self-interest.
[56] I pause to note that there is no evidence about other “venues” for this manner of exercise save that Ms Hall apparently has a similar swim-spa at another residence (location not known). It is conceivable that the fundamental issue is one of convenience.
[57] I answer the question whether withholding consent is unreasonable as unequivocally no.
Should relief against cancellation be granted?
[58] Relief against cancellation is a discretionary remedy. The essential question in this case is whether cancellation is a proportionate response to the breach. It is not likely to be proportionate in the case where cancellation may trigger the contractual power of sale of the plaintiff’s interest in the property.25
[59] However, the position all along has been that the defendants do not wish to cancel the lease but only seek removal of the swim-spa. They are content for relief to be granted on condition that the swim-spa is removed within a reasonable time. (There is no evidence about what may constitute a reasonable time.) They argue that this addresses the proportionality issue.
[60] I agree with that submission though the breach of cl 10 was not deliberate and that the dispute over whether the swim-spa is a structure is a genuine one. Most materially, I do not regard the intrusion as merely minimal for the reasons already set out. Additionally, the plaintiffs’ own evidence is that removal is not onerous.
[61] Accordingly, having found a breach of cl 10 of the Lease and that consent is not unreasonably withheld, I exercise my discretion to grant relief against cancellation expressly on the condition that the plaintiffs remove the swim-spa from the property within two months of the date of this judgment.
Costs
[62] I reserve the question of costs. In the event the parties are unable to agree costs memoranda of no more than five pages may be filed within 20 working days, with responses within a further 10 working days. Costs will then be dealt with on the papers.
25 Clause 24 of the Lease.
[63] Finally, I express the Court’s gratitude for the quality and focus of counsels’ submissions and approach.
............................................................
Walker J
Appendix 1
This photograph has been redacted for privacy purposes.
This photograph has been redacted for privacy purposes.
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