Kidd v Right Investments Limited
[2025] NZHC 2306
•14 August 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2024-409-578
[2025] NZHC 2306
BETWEEN HILARY VICKY KIDD
Appellant
AND
RIGHT INVESTMENTS LIMITED
Respondent
Hearing: 6 May 2025 Appearances:
M P Davis for Appellant
G M Brodie for Respondent
Judgment:
14 August 2025
JUDGMENT OF OSBORNE J
Introduction
[1] Parata & Woods Ltd (now in liquidation) (Parata) was a hospitality company controlled by the appellant, Hilary Kidd. In November 2020 Parata entered into an agreement (Agreement) with the respondent, Right Investments Limited (RIL) (a company controlled by Murray Irvine) to lease commercial premises at Brighton Mall, Christchurch. Ms Kidd guaranteed Parata’s performance of its obligations under the lease. She took possession of the premises and undertook alteration work. She ran into difficulties with building consent requirements and never reached the point of operating a business from the premises. Neither Parata nor Ms Kidd had made any rent payments. In March 2022 RIL re-entered the premises.
[2] In the District Court, RIL sought and obtained judgment for rent from 1 January 2021 to 9 March 2022; the costs of reinstating the premises; interest; and costs on an indemnity basis pursuant to a contractual provision. The liability findings
KIDD v RIGHT INVESTMENTS LIMITED [2025] NZHC 2306 [14 August 2025]
are set out in the District Court judgment, dated 27 March 2024, following trial (Liability Judgment).1 In a subsequent judgment (Quantum Judgment) dated 3 July 2024, the Judge fixed the judgment sum (including legal fees on an indemnity basis), at $222,171.72.2
The appeal
[3] Ms Kidd appeals both the Liability Judgment and the Quantum Judgment. She also seeks an order for the costs of the appeal.
[4] Centrally, she asserts that under the concluded terms of the Agreement the obligation to pay rent and operating expenses never arose. She says therefore the portions of the Liability Judgment relating to rental, operating expenses and interest should be quashed. Secondly, she asserts RIL had no entitlement to that portion of the Liability Judgment representing reinstatement costs (together with interest) because RIL had unlawfully re-entered the premises denying Ms Kidd a reasonable opportunity to reinstate the premises. Finally, Ms Kidd asserts as RIL should have failed on both those aspects of its claim it was not entitled to costs (whether on an indemnity basis or at all).
The key contractual issue
[5] The key contractual issue is as to the date (“commencement date”) at which Ms Kidd’s obligation to pay rent and outgoings was to commence under the Agreement.
[6] The Agreement provided for annual rent of $58,000 plus GST, together with identified outgoings, estimated in the Agreement at $11,000 plus GST per annum.
[7] RIL asserted the date for commencement of payment of rent and outgoings was “no later than 1 January 2021”. Ms Kidd asserted the date for commencement was “the date that the tenant commences trading from the premises”.
1 Right Investments Ltd v Kidd [2024] NZDC 6683 [Liability Judgment].
2 Right Investments Ltd v Kidd [2024] NZDC 15276 [Quantum Judgment].
[8] RIL asserted, in the event the Court found the commencement date was not 1 January 2021, either a term should be implied into the Agreement that payment of rent and operating expenses was to commence on a reasonable date or RIL had made time of the essence so as to create a commencement date.
[9] The commencement date issue turns on the manner in which the parties made amendments to the form of agreement before it was treated by them as their concluded Agreement.
[10] Mr Irvine, an experienced real estate agent, used the standard ADLS/REINZ Agreement to Lease form (the ADLS form).3
[11] Mr Irvine recorded in the ADLS form the commencement date was “1 December 2020 or earlier by agreement”. Under subclause 3.1 of the second schedule to the ADLS form, the tenant was required to pay the annual rent by equal monthly instalments in advance as from the specified commencement date.
[12] The third schedule of the ADLS form provides for “further terms (if any)”. Mr Irvine had typed into the third schedule two sets of further terms. First, a term permitting the tenant to fit out the premises on specified conditions. Secondly, a provision for the tenant to have early access at no rental cost. That provision read:
The tenant shall have access to the premise at no cost upon the signing of this contract and the payment of one months rental deposit. Full rent and Opex costs will be paid monthly in advance from the 1 December 2020.
[13] In the course of the subsequent exchanges of the draft agreement, three sets of handwritten additions or notations were made, each of which was discussed by the Judge in the Liability Judgment. I will now be setting out below at [14] the Judge’s discussion of and findings in relation to the evidence—at [16], [19] and [20] of the Liability Judgment excerpt, I will insert three tables showing the relevant iterations of the third schedule of the form of agreement.
3 Auckland District Law Society Inc and Real Estate Institute of New Zealand Inc (Agreement to Lease) (5th edition 2012 (4)).
The District Court findings on the commencement date
The judgment
[14] The Judge concluded it was a term of the Agreement that rent and outgoings would be payable as from 1 January 2021. The evidence and his Honour’s findings on the evidence, which led to that conclusion, are set out in a lengthy passage in the Liability Judgment, which I reproduce (with relevant iterations of the third schedule to the Agreement inserted):
[8] Right Investments has owned the property for upwards of 20 years. Throughout that time the premises has been leased to only two tenants. It had become vacant and was advertised for lease. Ms Kidd approached Mr Irvine, a director and shareholder in Right Investments, in October 2020 and explained that she had traded previously in Ferry Road, a few kilometres away. She ran a bar and wanted something closer to home from which she could operate a restaurant and bar. She told Mr Irvine that she thought the business would go well in the area and that the site would be very suitable. Ms Kidd told Mr Irvine that she was interested. She asked him to draw up a lease as she wanted to begin trading in the New Year.
[9] Ms Kidd wanted access as soon as the lease was signed. She told Mr Irvine that she was making a lot of plans for the property and would make significant changes to the fit out. She agreed she would comply with any council rules as she had done in her last bar.
[10] There was discussion between Mr Irvine and Ms Kidd about timeframes. It was agreed that Ms Kidd would commence payments of rent and OPEX from 1 December 2020 giving her approximately six weeks to get the business organised. Ms Kidd agreed that the lease would commence on 1 December 2020.
[11] On 23 October 2020, Ms Kidd provided Mr Irvine with details of her company to include in the draft lease. On 25 October 2020 Ms Kidd provided the name of her solicitor. Mr Irvine, who is an experienced real estate agent and businessman, prepared an agreement to lease in the name of Right Investments. He sent that together with the REA handbook to Ms Kidd. The agreement to lease incorporates all the terms and conditions contained in the ADLS Deed of Lease Sixth Edition 2012. The commencement date was shown as 1 December 2020.
[12] Ms Kidd confirmed that she had received the lease and she told Mr Irvine that she had been in discussions with her lawyer. She said that after talking to her solicitor the date might be a bit tight. Accordingly, Mr Irvine and Ms Kidd agreed to make the commencement date one month later. Ms Kidd also said that she would need to make the lease conditional upon the termination of her other lease within five working days. Mr Irvine agreed that the changes were acceptable. Ms Kidd told him she would send the lease back to him.
[13] On 12 November 2020 at 10:50 a.m. Ms Kidd’s solicitor, Ms Coombes, sent an email to Ms Kidd in which she attached “a part signed agreement which includes a condition that you terminate your current lease within 5 working days”.
[14] On 12 November 2020 at 11:00 am, Ms Kidd sent Mr Irvine the “lease agreement” as an attachment to her email of that date. She wrote:
[A]s you will see below, my lawyer has put the condition of 5 days for my previous lease to be signed off. I signed off the agreement my previous landlords sent through and there are no changes on it so there will be no problems with this being signed off. I just wanted to get this through to you along with the deposit so I can get in there over the long weekend and get this place moving.
Ms Kidd had signed the agreement to lease on behalf of the tenant and as guarantor.
[15]Clause 10.2 of the agreement provides:
The landlord agrees that the rent and outgoings will commence from the date that the tenant commences trading from the premises, not the commencement date of the lease.
[16] Ms Kidd’s initials appear immediately below clause 10.2. Clause 11 provides “this agreement is conditional upon the tenant terminating their prior lease for the property… within 5 working days of the date of this agreement. Clauses 10.2 and 11 are in the handwriting of Ms Kidd’s solicitor.
Table 1 (Ms Kidd’s 12/11/2020 amendments)
[17] Clause 10.2 was not in the draft agreement to lease which Mr Irvine had prepared. His draft provided for 1 December 2020 as the start date but, as it had been discussed between him and Ms Kidd, he expected that she would change the start date to 1 January 2021. Ms Kidd called Mr Irvine and they discussed the commencement date again. They agreed it was okay to put the date of 1 January as they had agreed.
[18] Mr Irvine noted that clause 10.2 left the date for commencement of rent and outgoings dependent on the date on which the tenant commenced trading from the premises not the commencement date of the lease. That was not acceptable to Mr Irvine who added the words “this will be no later than 1st January 2021” at the end of clause 10.2.
[19] Mr Irvine signed the agreement to lease and sent it to Ms Kidd by email on 12 November 2020 at 12:08 p.m. His evidence is that the words “this will be no later than 1st January 2021” were on the agreement to lease he sent to Ms Kidd. He stated, “if you can please pay the deposit and confirm the clause 11 in writing ASAP the lease can then commence.” Mr Irvine initialled the left-hand margin between clause 10.2 and clause 11.
Table 2 (Mr Irvine’s 12/11/2020 amendment)
[20] On 12 November 2020 at 3:47 p.m. Ms Kidd sent an email in which she stated, “please see attached signed section 11.0 as confirmation for the lease.” Ms Kidd had added her initials below the initials of Mr Irvine adjacent to clause 11. Ms Kidd would have the single page of the agreement to lease
containing clause 10.2 and 11. If, as she asserts, Mr Irvine only added the words “this will be no later than 1st January 2021” at the end of clause 10.2 after it had been returned to him then the single page which Ms Kidd sent as the attachment to her email would not contain those words.
Table 3 (with Ms Kidd’s additional initial added)
[21] Mr Irvine had no reason to believe that Ms Kidd had not read his addition to clause 10.2. He stated that this was exactly as they had discussed by telephone the day before and Ms Kidd’s initials appeared almost immediately adjacent to the addition he had made. Further, there was “no way” he would ever have agreed to a completely open-ended commencement date, and this is not what they had bargained.
[22] Mr Irvine denies altering clause 10.2 after Ms Kidd had signed the lease and sent it back to him.
[23] Mr Irvine commenced invoicing for rent from 1st February 2021. On 28 January 2021 at 9:35 a.m. Ms Kidd sent an email to Mr Irvine in which she stated:
Just to touch base following my text message also, I understand rent is payable for February. Could you please let me know if this is the case for January?
[24] Mr Irvine sent Ms Kidd an email in reply on 28 January 2021 at 11:04 a.m. in which he stated:
As for rent and OPEX payments, we can overlook anything for January as long as both rent and OPEX are paid on the first of each month starting on February 1st.
[25] On 19 March 2021 at 7:11 p.m. Ms Kidd sent Mr Irvine an email with the subject “arrears” in which she referred to a text message she had sent Mr Irvine that morning. She stated she was currently in the process of accessing funds to take care of rent. She sought clarification that she was in arrears for the OPEX charge on 1 February and for March rent and OPEX because she paid the first month’s rent when she signed the lease.
[26] Mr Irvine replied by email on 26 March 2021 at 10:58 a.m. in which he stated that “the agreement” was signed on the 13/11/20 and was due to start on the 1st December. He stated that was changed by Ms Kidd and initialled (clause 10.2) and “it wouldn’t start until trading started but to be no later than 1st January and the deposit paid gave you no rent to pay until February.” He went on to say that from 1st February both rent and OPEX were payable monthly. He added that OPEX was payable for January but “we were feeling sorry for you and waived the charge for that month.” He concluded by saying that there were three months owing of both rent and OPEX which needed to be dealt with.
[27] I am satisfied that Mr Irvine added the words “this will be no later than 1st January 2021” at the end of clause 10.2 before he sent the agreement to Ms Kidd on 12 November 2020 at 12:08 pm for several reasons. The one is that Ms Kidd sent the signed agreement back to Mr Irvine on 12 November at 3:47 pm. If she had received the agreement without the additional words then she would still have in her possession the agreement without those words in pdf format. She has not produced such a document.
[28] Further, neither Mr Irvine nor Ms Kidd would have sent those emails about rent being payable if there had not been agreement that rent would be payable as from 1 January 2021. On 11 June 2021, for the first time, Ms Kidd asserted that she had never agreed to a commencement date for the payment of rent and outgoings from 1 January 2021. She asserted that Mr Irvine had altered the lease after she had initialled clause 11 and returned it to him. She repeated that assertion in an email dated 7 September 2021 and in a letter dated 3 December 2021 sent to MDS Law.
[29] Further, Mr Irvine gave evidence that he had a discussion with Ms Kidd over the phone about the rent and outgoings being payable as from 1 January 2021. He was not shaken in cross-examination about that. It would not make sense for an experienced real estate agent and businessman to leave the commencement of the obligation to pay rent and outgoings open. Ms Kidd did not accept that there was discussion over the phone with Mr Irvine about rent being payable no later than 1 January 2021. I reject her evidence on this point because it is inconsistent with her emails about rent and outgoings being payable from February 2021. If, as she asserts, it was agreed that rent and outgoings not be payable until she started trading then she would have responded to Mr Irvine’s statement that rent and outgoings were payable from February by saying just that.
[30] Ms Kidd submits that it is telling that Mr Irvine did not mention in his email to her that he had added the words “This will be no later than 1 January 2021.” Mr Irvine explains that while it would have been prudent to have made
specific mention of the addition of those words, he did not think it necessary because they had discussed it over the phone.
[31] I therefore conclude that it is a term of the agreement to lease that rent and outgoings would be payable as from 1 January 2021. It is unnecessary to determine whether, absent an agreed date for the commencement of rent and outgoings, a term would be implied into the agreement to lease that those payments would commence on a reasonable date.
The key issue identified by the Judge
[15] The Judge identified the key issue in the proceeding as being whether the date for the commencement of the payment of rent was “no later than 1 January 2021” (the “no later” words) (as RIL asserted) or the date Parata commenced trading from the premises (as Ms Kidd asserted).4
[16] As the above excerpt from the Liability Judgment indicates, the Judge’s conclusion on that issue relied significantly on credibility findings relating to the evidence of Mr Irvine and Ms Kidd respectively.
[17] It is evident the Judge, in assessing the credibility and reliability of Mr Irvine and Ms Kidd respectively on issues relating to the formation of the contract, understood it was Ms Kidd’s contention that Mr Irvine had added the “no later” words to cl 10.2 of the Agreement at some point after she placed her final initial on the Agreement on 12 November 2020.
[18] The Judge records Mr Irvine’s evidence as being that the words were on the Agreement he sent to Ms Kidd on 12 November 2020 at 12.08 pm.5 The Judge added that “Mr Irvine denies altering clause 10.2 after Ms Kidd had signed the lease and sent it back to him.”6 The Judge observed that, if Ms Kidd’s assertion was correct, the single page which Ms Kidd sent as an attachment to her (3.47 pm) email would not contain the “no later” words.7
[19] The Judge returned to the significance of that analysis in the Liability Judgment where he accepted Mr Irvine’s evidence. He went on to observe that, had
4 Liability Judgment, above n 1, at [3].
5 At [19].
6 At [22].
7 At [20].
Ms Kidd received the agreement without the additional “no later” words, she would still have in her possession the Agreement without those words in pdf format, yet Ms Kidd “has not produced such a document”.8
[20] The Judge concluded he was satisfied Mr Irvine had added the words before he sent the Agreement to Ms Kidd at 12.08 pm.9
[21] There was a fundamental flaw in the discussion of the respective evidence of Mr Irvine and Ms Kidd. Ms Kidd had not asserted Mr Irvine had added the “no later” words sometime after she returned the signed Agreement to Mr King at 3.47 pm on 12 November 2020. Ms Kidd’s case was that Mr Irvine had added the “no later” words to cl 10.2 without telling her beforehand or drawing the addition to her attention when he emailed the Agreement back to her at 12.08 pm with the “no later” words added. The relevant passage in Ms Kidd’s brief of evidence, which became her evidence-in-chief at the hearing, reads:
14.At 3:47 I e-mail a single page attachment initialling clause 11.0 as this is what I thought he was referring to in his last e-mail [at 12.08]. For the avoidance of doubt, I want to make it clear that when doing so I did not notice that Mr Irvine had added another sentence to clause 10.2 and by initialling clause 11.0 I was certainly not accepting that change.
[22] To the extent Ms Kidd was cross-examined by Mr Brodie in relation to the presence of the “no later” words on the Agreement, it is contained in this single exchange recorded in the Notes of Evidence:
Q. And do we take it that you didn’t read the alteration in his handwriting?
A. I did not notice his alteration, no.
[23] Accordingly, Ms Kidd did not suggest in her evidence that the “no later” words had been added by Mr Irvine after he received the Agreement back at 3.47 pm on 12 November 2020. The Judge’s conclusion in the Liability Judgment, in accepting Mr Irvine’s evidence and rejecting what he took to be Ms Kidd’s position, rested on
8 At [27].
9 At [27].
an incorrect understanding of her evidence and her case.10 Her case was Mr Irvine had inserted the words without first discussing them with her or drawing them to her attention when emailing the amended Agreement at 12.08 pm, leading her to not notice the amendment.
[24] The Judge went on to find other reasons to reinforce the conclusion that Mr Irvine’s evidence was to be preferred. Those included that Mr Irvine was not shaken in cross-examination as to a preceding discussion as to rent and outgoings being payable from 1 January 2021; it made sense that an experienced real estate agent and businessman would not leave the commencement date open; Ms Kidd’s correspondence with Mr Irvine from late-January 2021 referred to her understanding that rent had become payable; and Ms Kidd had not asserted until 11 June 2021 that she had not agreed to the 1 January 2021 commencement date.11
Discussion—the key contractual issue
[25] I recognise that, apart from the Judge’s preference of Mr Irvine’s evidence as to when the “no later” words were added to the Agreement, there were several other significant aspects of the evidence which led the Judge to find the “no later” words had been incorporated into the contract. But it is clear the Judge’s conclusion in preferring Mr Irvine’s evidence as to when the words had been added to the Agreement was an important part of the Judge’s conclusion. The judgment contains detailed discussion of the time at which the “no later” words were introduced before the Judge identifies his conclusion on this point as his first reason for preferring Mr Irvine’s evidence.
[26] This is not a situation in which it is open to this Court on appeal, without the advantage of hearing from the witnesses, to substitute findings the Judge might have made on the key issue without a misunderstanding as to the nature of the appellant’s evidence and case.
10 At [27].
11 At [28]–[29].
[27] The respondent did not seek to support the Liability Judgment as to rent on other grounds (such as an implied term as to the commencement of rent payments on a reasonable date).
[28] Regrettably, the only appropriate course is for the judgment in relation to rent to be quashed and the proceeding remitted to the District Court for re-trial.
[29] It follows the Court must also quash the award of the costs of reinstatement (based on a failure to reinstate following termination of the lease for non-payment of rental), together with those aspects of the judgments dealing with interest and legal expenses.
Costs
[30] Costs must follow the event. The proceeding was categorised under r 14.3 High Court Rules 2016 as a Category 2 proceeding.
Result
[31]The orders at [48] of the 27 March 2024 District Court judgment are quashed.
[32]The judgment entered at [17] of the 3 July 2024 judgment is quashed.
[33]The proceeding is remitted to the District Court for re-trial.
[34] The respondent is to pay the appellant’s costs on a 2B basis together with the appellant’s reasonable disbursements, to be fixed by the Registrar.
Osborne J
Solicitors:
MDS Law, Christchurch Taylor Shaw, Christchurch
Counsel: G M Brodie, Barrister, Christchurch
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