HSC Holdings Limited v Tomu - [2012] NZHC 1769

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-001031 [2012] NZHC 1769

BETWEEN HSC HOLDINGS LIMITED Plaintiff

ANDMANU TOMU Defendant

Hearing: 19 July 2012

Counsel: K F Gould for plaintiff
D Singh for defendant

Judgment: 19 July 2012

(ORAL) JUDGMENT OF ASSOCIATE JUDGE ABBOTT

Solicitors:
Bruce Cyril McNiece, PO Box 99 Shortland Street, Auckland
S Singh, P O Box 10018, Dominion Rd, Mt Eden, Auckland

Counsel:
K Gould, P O Box 1011, Shortland Street, Auckland

HSC HOLDINGS LIMITED V MANU TOMU HC AK CIV 2012-404-001031 [19 July 2012]

[1] This is a dispute over the right to possession of a residential property at 6

Jenkins Place, Manurewa.

[2] The plaintiff purchased the property at an auction, conducted pursuant to a mortgagee sale, in December 2011. It has applied for an order for recovery of the land, by way of summary judgment.

[3] The defendant has tenanted the property since June 2009. She opposes summary judgment, contending that she has an arguable case for possession.

Background

[4] Some brief background assists the understanding of the key issues in the case. As at June 2009, the property was owned by Chia Ling Lu (Mr Lu). The property was subject to a mortgage to Westpac New Zealand Limited. On 19 June 2009 Mr Lu let the property to the defendant. The tenancy agreement shows that it was a periodic tenancy commencing on 20 June 2009. It appears that the defendant has been in occupation of the property since that time.

[5] In June 2011 Set Kien Law (Ms Law) lodged a caveat against the title,

claiming an interest “as purchaser and lessee pursuant to an agreement dated

05/03/2011 between the registered proprietor Chia Ling Lu and the caveator”. That

agreement is not in the evidence before the Court.

[6] On 27 August 2011 Mr Lu and Ms Law apparently entered into a tenancy agreement under which Mr Lu granted a five year fixed term tenancy to Ms Law. The agreement states that the tenancy shall commence on 27 August 2011, and terminate on 27 August 2016. It contained the following provisions:

(a) Under “Tenancy details”:

Prepaid lease (Rent) from 27/08/2011 for 5 years as per Sales and purchase agreement dated 5/3/2011.

(b) Under the agreement itself:

The landlord and tenant agreed that

...3. The tenant shall ~~not~~ assign or sublet the tenancy without the
landlord’s written consent

5. Existing tenancy can be transferred [sic] to this tenancy agreement.

[7] There is no evidence before the Court as to what happened to the tenancy agreement dated 19 June 2009 between Mr Lu and the defendant, nor as to any arrangements made between the defendant and either Mr Lu or Ms Law consequent upon either the apparent sale and purchase agreement of 5 March 2011 or the tenancy agreement of 27 August 2011. However, on 16 November 2011 Ms Law apparently entered into a tenancy agreement with Manu Tomu (Ms Tomu) with effect from that date. The agreement specifically provided that it was…

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: [2012] NZHC 1769
Decision Date: 19 July 2012

CaseChat Overview and Summary

In the High Court of New Zealand, HSC Holdings Limited applied for summary judgment against Manu Tomu, who has been in occupation of a residential property since June 2009. The plaintiff, HSC Holdings Limited, purchased the property at auction in December 2011, and argues that it is not bound by any tenancy agreement with the defendant. The defendant, Manu Tomu, contends that she has an arguable case for possession based on the Residential Tenancies Act 1986. The central issues in this application are whether section 58 of the Act applies, and whether that first issue can be determined at summary judgment. The court found that there was sufficient evidence to establish an arguable case that the plaintiff had knowledge of the tenancy, and that it was inequitable to refuse to honour the tenancy. The application for summary judgment was dismissed, and the substantive proceeding will progress with the defendant required to file a statement of defence by 3 August 2012. The court also made directions for discovery and a case management conference. Costs are reserved pending final determination of the proceeding.

Orders