Hubbard v Kiwirail Limited - [2016] NZHC 2719

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-3145 [2016] NZHC 2719

BETWEEN
PETER BRENT HOME HUBBARD

AND HARLEY HAYNES First Applicants

AND

OCEANIC PALMS LIMITED Second Applicant

AND

KIWIRAIL LIMITED Respondent

Hearing: 10 November 2016

Appearances:

Applicants in person
E Martin for Respondent

Judgment:

14 November 2016

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 14 November 2016 at 3.30 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Hubbard v Kiwirail Limited [2016] NZHC 2719 [14 November 2016]

[1] On 20 May 2016, Fogarty J delivered a judgment between the parties dismissing applications by the first and second applicants for orders preventing Kiwi Rail from increasing the rent on a lease of commercial premises, and preventing Kiwi Rail from re-entering and terminating the lease. The application was made under sub-part (6) of the Property Law Act 2007.1

[2] After setting out his reasoning, Fogarty J dismissed the applications and made a costs order in the following terms:

[65] For these reasons the applications by the lessees are dismissed, with two qualifications:

(a) That is, that the lessees have one calendar month from the date of delivery of this judgment to pay the arrears of rental at the new rate. If not, having given notice, see [21] above, Kiwirail may cancel the lease. It is likely that the lessees will appeal this judgment to the Court of Appeal. That will not affect the judgment of the High Court as to cancellation of the lease.

(b) Second, in place of the remedy of cancellation of rent, the lessees have one calendar month to formally dispute the rent, so that the dispute be then submitted to arbitration in Auckland, see cl 2.2(b) of the lease.

[66] I have explained to the lessees that if they wish to avoid cancellation of the lease alongside appealing to the Court of Appeal they will need to lodge their appeal from this judgment well within the one month allowed and also apply to the Court of Appeal, not to this Court, for any restraint they seek to be imposed on Kiwirail, pending the hearing of their appeal.

[67] Kiwirail Ltd is entitled to costs having successfully opposed the application. Costs are awarded on a 2B basis.

[3] On 16 June 2016, the first applicants filed an urgent interlocutory application for a stay of Fogarty J's judgment pending the results of an appeal to the Court of Appeal, notice of appeal having been filed on 14 June 2016. Mr Hubbard's affidavit in support of the stay application asserted that if Kiwirail was allowed to re-enter the leased property the result would be the end of the applicants' ability to keep running their business and pursue the appeal.

[4] The respondent filed a memorandum of counsel in response. counsel informed the Court that Kiwirail was prepared in the circumstances to agree not to

1 Hubbard & Anor v Kiwirail Limited [2016] NZHC 1061.

re-enter the property until the Court of Appeal…

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.

Keep reading for free

Create a free CaseChat account to read Hubbard v Kiwirail Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NZHC 2719
Decision Date: 14 November 2016

CaseChat Overview and Summary

The applicants, Peter Brent Home Hubbard and Harley Haynes, along with Oceanic Palms Limited, appealed against a decision by Fogarty J, which dismissed their application for orders preventing Kiwirail Limited from increasing the rent on a lease of commercial premises and re-entering and terminating the lease. The respondents sought to enforce a costs order made by Fogarty J, which the applicants now sought to stay pending the outcome of their appeal. The court had to determine whether the stay of execution of the substantive judgment also extended to the costs judgment. The applicants argued that the stay of the substantive judgment should also include the costs judgment, while the respondents disputed this and contended that the stay order did not extend to the costs judgment. The court considered that the agreement between the parties upon which the consent orders were made was a contract and was susceptible to the usual approach to contractual interpretation. The court held that the consent orders did not include the costs judgment made several months after the substantive judgment and the consent stay orders. The court dismissed the application for a further stay order in relation to the costs judgment, and the respondents were entitled to costs. If costs on the application were sought, the respondents shall file and serve a memorandum on or before 25 November 2016, and any memorandum in reply on behalf of the applicants should be filed and served by 9 December 2016. Costs will then be dealt with on the papers unless the Court directs otherwise.

Orders