HJS Ag Ltd v Tumatatoro Ltd - [2021] NZHC 1070

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-570

[2021] NZHC 1070

IN THE MATTER
of a claim for specific performance of an obligation to renew a lease and related

claims under a guarantee

BETWEEN

HJS AG LTD

Plaintiff

AND

TUMATATORO LTD

First Defendant

RIPEKA PATENE-STOUT, SAMUEL NGAKAPA THOMPSON, MATILDA ORA THOMPSON, MOANA VICKI

THOMPSON (aka MOANA APAAPA) and RAYMOND WAERO THOMPSON in their

capacities as trustees or former trustees of Kahupeka Te Waero Whanau Trust Second Defendant

Hearing: 11 May 2021

Counsel:

H L Thompson for Plaintiff

K K Naidu and S M P Loa for First Defendant and Ripeka Patene- Stout, Samuel Ngakapa Thompson and Raymond Waero
Thompson (First, Second and Fifth-named Second Defendants)

Judgment:

13 May 2021

JUDGMENT OF BREWER J

This judgment was delivered by me on 13 May 2021 at 3 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

HJS AG LTD v TUMATATORO LTD [2021] NZHC 1070 [13 May 2021]

Introduction

[1] The plaintiff applies, on notice, for interim injunctive relief against the first defendant and the second defendants. The defendants oppose the application on the same grounds.

[2] The plaintiff is a dairy farmer. It subleases a dairy farm from the first defendant which in turn leases the farm from the second defendants.

[3] The second defendants are sued as trustees, or former trustees, of Kahupeka Te Waero Whanau Trust, an Ahu Whenua trust.

[4] The plaintiff leases the dairy farm pursuant to a lease dated 30 November 2013 (“the lease”). The term of the lease is seven years from 1 June 2014. It expires on 31 May 2021.

[5] The lease provides for a renewal of eight years from 1 June 2021, with a final end date of 31 May 2029.

[6] The plaintiff wishes to renew the lease, and has purported to give notice to that effect, but the first defendant does not wish to grant the renewal. The plaintiff’s substantive proceeding includes a claim for specific performance requiring the lease to be renewed.

[7]The plaintiff’s application for interim relief is for an order:

Restraining the first respondent/first defendant, Tumatatoro Limited (“Tumatatoro”), and the second respondents/second defendants named above (“the Trustees”) or their agents, successors or assigns, from re-entering or purporting to re-enter, or from evicting HJS Ag or taking possession from HJS Ag of the land situated at 1177A East Coast Road, Kaiaua, contained in Computer Freehold Register NA16D/1250 being 18.2109 hectares more or less and the land situated at 1177B East Coast Road, Kaiaua contained in Computer Freehold Register NA51D/1219, being 95.6167 hectares more or less (together, “the Property”) pending further order of this Court.

[8]The plaintiff is entitled to injunctive relief if it satisfies the Court:1

1 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 140 (CA); American Cyanamid v Ethicon Ltd [1975] AC 396.

(a)there is a serious question to be tried; and

(b)the balance…

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: [2021] NZHC 1070
Decision Date: 13 May 2021

CaseChat Overview and Summary

HJS Ag Ltd applied to the High Court for interim injunctive relief against Tumatatoro Ltd and the trustees or former trustees of the Kahupeka Te Waero Whanau Trust. The plaintiff claimed for specific performance of an obligation to renew a lease and related claims under a guarantee. The defendants opposed the application. The plaintiff subleases a dairy farm from Tumatatoro Ltd, which in turn leases the farm from the second defendants. The lease dated 30 November 2013 provides for a renewal of eight years from 1 June 2021. The plaintiff wishes to renew the lease, and has purported to give notice to that effect, but Tumatatoro Ltd does not wish to grant the renewal. The plaintiff's substantive proceeding includes a claim for specific performance requiring the lease to be renewed.

The court was required to decide whether the plaintiff was entitled to interim injunctive relief and whether there was a serious question to be tried. The court found that there was a serious question of law to be tried as to whether the plaintiff's right of renewal could be exercised. The court found that there was a serious argument at law that the second defendants were bound to grant Tumatatoro Ltd a renewal of the head lease so that the lease would be renewed. The court found that the balance of convenience favoured the plaintiff, and that the overall interests of justice required the granting of the relief sought. The application for interlocutory relief was granted, and the court made an order restraining Tumatatoro Ltd and the second defendants from evicting the plaintiff from the property. The court reserved leave to Tumatatoro Ltd to apply for variation or rescission of this order in the event of breach of the lease by the plaintiff.

Orders