Mudgway v D M Roberts Limited - [2012] NZHC 1463

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2012-470-000114 [2012] NZHC 1463

BETWEEN M S MUDGWAY AND L A MUDGWAY Plaintiffs

ANDD M ROBERTS LIMITED Defendant

Hearing: 22 May 2012

Appearances: Mr M Fisher for Respondent/Plaintiffs
Mr D Simpson for Applicant/Defendant

Judgment: 29 June 2012

JUDGMENT OF ASSOCIATE JUDGE DOOGUE

This judgment was delivered by me on
29.06.12 at 4 pm, pursuant to
Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Counsel:
Mr M Fisher, Erskine Chambers, Auckland – mj.fisher@erskinechambers.co.nz
Mr D M Simpson, Simpson Aspen Law, Tauranga – davids@salaw.co.nz

MUDGWAY & ANOR V D M ROBERTS LIMITED HC TAU CIV-2012-470-000114 [29 June 2012]

[1] The plaintiffs filed an application for summary judgment seeking orders that the defendant specifically perform the terms of a lease agreement under which the plaintiffs were assignees, the lease commencing 1 January 1985. The plaintiffs took proceedings for summary judgment because of a dispute that arose at the end of last year when attempts were made by the plaintiffs to assign their interest under the memorandum of lease to a person called Mr Pryor. When the defendant (the lessor) was asked to provide consent it agreed to do so but on terms which were unacceptable to the plaintiffs. The conditions attached to the granting of consent will be further discussed below.

[2] The plaintiffs brought the application because the proposed conditions attached to the grant of the lessor’s consent were not acceptable to Mr Pryor who had entered into an agreement to acquire from the plaintiffs their interest under the lease. Since the proceedings were commenced events have overtaken the plaintiffs. Mr Pryor, being no longer prepared to wait for the issue to be resolved by the Court, cancelled the agreement under which he was to acquire the plaintiffs’ interest.

[3] The plaintiffs sought in the alternative a declaration that the conditions that the lessor sought to impose were unjustified. In detail, the plaintiffs’ claim that the lessor was attempting to impose conditions on the assignment which the lessor/defendant had no right having regard to the terms of the lease.

[4] The plaintiffs have sought leave to amend their application to make some changes to the forms of the declarations. The substance of the orders sought though remain the same. The plaintiffs do not seek the specific performance orders that were originally part of the application.

[5] The background to the proceeding is that Mr D M Roberts who owned land in the Kaimai area conceived of a scheme to transfer land which he owned to a trust being some 2.5 hectares of rural land for the purposes of providing a recreational centre for pupils attending Tauranga Boys’ College. A lease was entered into in March 1985. The lease was for 999 years.

[6] However circumstances changed and it no longer fitted with the requirements of the parties for the trust. But the lessor was still desirous of the lease continuing in existence. It was decided that the lease should be…

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 Mudgway v D M Roberts 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: [2012] NZHC 1463
Decision Date: 29 June 2012

CaseChat Overview and Summary

In Mudgway v D M Roberts Limited, the plaintiffs sought summary judgment for declarations that the defendant unreasonably withheld its consent to the assignment of the lease. The defendant had attached conditions to the consent, which the plaintiffs found unacceptable. The court found that the defendant did not have the right to impose such conditions, as it would impose a greater detriment on the assignee than justified by the terms of the lease. The court also concluded that declarations would be useful to prevent the defendant from imposing unjustified conditions in the future, even though the Pryor transaction had been lost. The court granted the declarations sought by the plaintiffs, stating that the matters were of real concern and that the risk of the defendant imposing unjustified conditions in the future remained. The court rejected the defendant's arguments that the declarations were academic or that the plaintiffs had engaged in misconduct. The court also denied the defendant's application for a stay of proceedings, finding that the parties had a dispute that should be referred to arbitration.

Orders