Hansen Trust Company Ltd v Goodness Breads Ltd

[2023] NZHC 3352

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2023-441-47

[2023] NZHC 3352

UNDER

section 245 of the Property Law Act 2007

IN THE MATTER

of an application for cancellation of lease and possession of land

BETWEEN

HANSEN TRUST COMPANY LTD

Applicant

AND

GOODNESS BREADS LTD

Respondent

Hearing:	23 November 2023
Counsel:	D J O’Connor for Applicant H Worth for Respondent
Judgment:	23 November 2023

ORAL RESULTS JUDGMENT OF ISAC J

[1]        This is an application by a landlord under a lease for cancellation of a tenancy for non-payment of rent.

[2]        The position as it stands today is that a total sum of $26,735.10 is claimed by the applicant landlord, being its costs incurred in pursuing unpaid rent of $15,526.

[3]        The unpaid rent has only recently been paid by the tenant and so the issue for me today has been:

(a)whether or not the landlord is entitled to a sum by way of costs or compensation for pursing the unpaid rent in this proceeding;

HANSEN TRUST COMPANY LTD v GOODNESS BREADS LTD [2023] NZHC 3352 [23 November 2023]

(b)if so, the amount that should be paid by the tenant; and

(c)finally whether or not the payment of any costs as fixed should be a condition of an informal application by the tenant for relief against forfeiture of the lease.

[4]        Following discussion between counsel and the bench, Mr Worth was able to obtain instructions from his client. The indication I have received is that with a brief accommodation of time the tenant will be in a position to pay the sum of $26,735.10 by 5.00 pm on Monday, 4 December 2023. In light of that I make the following orders:

(a)I grant the tenant’s application for relief against forfeiture but conditional on the respondent paying the sum of $26,735.10 in clear funds and without deduction to the applicant on or before 5.00 pm on 4 December 2023;

(b)if payment of that sum is not made, I reserve leave to the applicant to renew its application for the cancellation of the lease. Should that be necessary I may be minded to deal with the matter on the papers, there being no dispute in relation to the failure to pay rent as and when due, or indeed that the landlord has incurred reasonable costs in having to make good on the tenant’s breach of lease.

[5]My reasons for making these orders will follow.

Isac J

Solicitors:

Hansen Bale Ltd, Hastings for Applicant WCM Legal, Wellington for Respondent