Levett v Village Accommodation Group Limited - [2012] NZHC 3356

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1692 [2012] NZHC 3356
BETWEEN MW LEVETT AND RNM
INDEPENDENT TRUSTEE CO LIMITED AS TRUSTEES OF GARVEY'S CREEK WORKERS PENSION FUND
Plaintiffs

ANDVILLAGE ACCOMMODATION GROUP LIMITED
Defendant

Hearing: 12 December 2012 (Heard at Wellington)

Counsel: M.W. Levett - First-named Plaintiff in Person for the plaintiffs
M. Freeman and C. Rieger - Counsel for Defendant

Judgment: 14 December 2012

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Under r 11.5 of the High Court Rules I direct the Registrar to deliver this judgment at 3.30 pm on 14 December 2012.

Solicitors: Thomas Dewar Sziranyi Letts, Solicitors, PO Box 31-240, Wellington

MW LEVETT AND RNM INDEPENDENT TRUSTEE CO LIMITED AS TRUSTEES OF GARVEY'S CREEK WORKERS PENSION FUND V VILLAGE ACCOMMODATION GROUP LIMITED HC WN CIV-2012-485-
1692 [14 December 2012]

Introduction

[1] Before the Court is an application for summary judgment by the plaintiffs seeking orders against the defendant for payment of a total sum of $93,690.33 for what are said to be rent arrears owing under a lease of serviced apartments, and claims for allegedly damaged, destroyed or lost chattels, lost keys and general apartment repairs.

[2] The application is opposed by the defendant.

Background

[3] On 12 October 2005 the plaintiff as lessor and the defendant as lessee entered into a Heads of Agreement and Lease (the contract) whereby the plaintiffs as owners leased to the defendant nine apartments being Apartments 1, 2, 3, 4, 5, 6 and 7 at 130
Willis Street, Wellington and Apartments A and B at 140 Willis Street, Wellington together with 12 indoor carparks at 130 Willis Street, Wellington.

[4] The lease was for a term of 6 years and 4 months which expired on 31

January 2012. On expiry of the lease of the various apartments, the plaintiffs claim that $68,074.32 as rent was outstanding and there were also other monies due to it from the defendant under the contract for missing chattels, repairs and the like, to make up the total claim of $93,690.33.

[5] In response, the defendant advances a number of defences and contentions which it says relate first, to the untenantability of certain apartments due to a leaking roof, secondly, to rent adjustments which are due when the landlord took over one apartment and a car park, thirdly, issues over reinstatement and repairs on termination of the lease and, fourthly, a counterclaim whereby the defendant claims by agreement it took over the landlord’s maintenance obligations for apartments subsequent to expiry of the lease on the basis it would charge the plaintiffs as landlord for those services, but under this arrangement payments still remain outstanding from the plaintiff. All this, according to the defendant, means that virtually all the plaintiffs’ $93,690.33 claim against it is effectively offset (other than a small balance which has now been settled) and therefore no moneys are due to the

plaintiffs. This is outlined in a rental reconciliation schedule prepared by the defendant attached as exhibit “L2” to the 31…

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 3356
Decision Date: 14 December 2012

CaseChat Overview and Summary

In the case of Levett v Village Accommodation Group Limited, the plaintiffs sought summary judgment against the defendant for unpaid rent and other damages amounting to $93,690.33. The defendant opposed the application, raising various defences, including issues of untenantability of certain apartments, rent adjustments, and counterclaims related to maintenance obligations post-lease. The primary legal issue was whether the court had jurisdiction over the dispute, considering the Residential Tenancies Act 1986. Associate Judge D.I. Gendall found that there was a reasonable argument that the Tenancy Tribunal had jurisdiction over the dispute, despite the monetary limit on claims.

The court determined that the application for summary judgment should be dismissed as there were significant factual disputes between the parties that required full exploration at a substantive trial. The court also found that the case was more appropriately handled in the District Court due to the amount claimed. Consequently, the court dismissed the plaintiffs' summary judgment application and ordered the case transferred to the District Court. Additionally, costs were awarded to the defendant on a category 2B basis, with disbursements fixed by the Registrar.

Orders