Modes of Broadway Limited v L & Y Holdings (no.3) Limited

[2015] NZHC 484

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2015-404-000045

CIV2015-404-000046 [2015] NZHC 484

UNDER	the Companies Act 1993
IN THE MATTER OF	applications for orders setting aside statutory demands
BETWEEN	MODES OF BROADWAY LIMITED Applicant
AND	L & Y HOLDINGS (NO.3) LIMITED Respondent

Hearing:	16 March 2015
Appearances:	T Molloy for the Applicant H M Lim for the Respondent
Judgment:	16 March 2015

ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

MODES OF BROADWAY LIMITED v L & Y HOLDINGS (NO.3) LIMITED [2015] NZHC 484 [16 March

2015]

[1]      The applicant Modes of Broadway Limited and respondent L & Y Holdings

(No.3) Limited were lessee and lessor pursuant to an agreement to lease dated 13

May 2003.  The respondent leased to the applicant part of the property at 176 – 178

Broadway, Newmarket, Auckland.

[2]      The respondent served two statutory demands upon the applicant.  One was for a sum of $10,822.32 claimed for unpaid GST for rent and outgoings.  The second required payment of $38,262.32 “in respect of arrears of outgoings”.

[3]      At the same time as serving those statutory demands the respondent served notices of intention to cancel the lease.  Those warned of a right to cancel the lease unless the statutory demands were paid within 10 working days.

[4]      The applications to set aside statutory demands were filed on 15 January

2015.  Those asserted the amount claimed was not owed and was disputed; that the applicant had a counterclaim or setoff that exceeded the value of the alleged debt; and that parts of the claim were statute barred under s 4 of the Limitation Act 1950.

[5]      Significant evidence has been filed in support of the applications.

[6]      When the applicant entered into the lease the respondent was developing a

300 apartment building complex directly behind, and was also constructing a multi- level building on the neighbouring site.  The applicant says that for the first six years of the lease it was subject to constant construction noise, dust, vibration, power cuts and flooding arising from the construction activities.

[7]      In  its  opposition  the  respondent  noted,  among  other  grounds,  that  the applications to set aside the statutory demands were filed out of time.

[8]      For today’s hearing submissions were filed dealing with all matters in dispute including the preliminary issue of whether or not the setting aside applications were filed within time.

[9]      In response to the issue being raised by the respondent’s notice of opposition affidavit evidence was obtained on behalf of the applicant.

[10]     For the applicant an affidavit was provided by Ms Canning a client services coordinator employed by RightWay Limited at 39 Jellicoe Street, Martinborough, the registered office of the applicant.

[11]     Ms  Canning  deposes  that  on  23  December  2014  a  courier  parcel  was delivered to 39 Jellicoe Street.   She says she received the parcel and scanned the documents  to  “my  colleagues”.    Regarding  claims  those  documents  had  been received on 22 December 2014 she responded “to the best of my knowledge the documents were delivered on 23 December 2014 at some time before 9:00am”.

[12]     In  opposition  Mr  Nielson  has  affirmed  that  he  is  a  Wellington  Branch Manager of New Zealand Couriers Limited whose computer records disclose the parcel in question was delivered on 22 December 2014 at 3:44pm.  He enclosed a copy of the ‘track and trace’ results as evidence and he explained how the delivery item is scanned during the process until final delivery.  Computer records confirmed delivery as at 3:44pm, 22 December 2014.

[13]     When today’s hearing opened there was a discussion regarding the competing evidence  of  delivery.    It  is  not  disputed  that  if  the  item  was  delivered  on  22

December 2014 then the setting aside applications were filed out of time and must therefore be dismissed.

[14]     In the Court’s view the clear evidence is that delivery was effected on 22

December 2014.  Ms Canning has, perhaps understandably, no recollection of when the item was delivered.  Nor does she say she witnessed delivery, only saying that it was to the best to her knowledge that the documents were delivered when she says they were.

[15]     Ms Canning’s affidavit was sworn more than six weeks after the date of

delivery.

Result

[16]     The setting aside applications must be dismissed.

[17]     Whilst usually costs are fixed at this time, the Court considers instead those should be reserved because in the outcome of the setting aside applications it is likely the respondent will file liquidation proceedings upon which the Court will likely consider  a  lot  of  the  evidence  and  the  submissions  prepared  for  today’s hearing.

[18]    Therefore the Court considers the fixing of costs upon the setting aside applications ought to be reserved until determination of the liquidation application.

Associate Judge Christiansen