MZ Ventures Limited v Milbank - [2021] NZHC 2896

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-566

[2021] NZHC 2896

UNER the Property Law Act 2007

IN THE MATTER

of an application for possession of property after cancellation of lease

BETWEEN

MZ VENTURES LIMITED

Applicant

AND

NEIL RICHARD MILBANK

Respondent

Hearing: On the papers

Appearances:

R J Hollyman QC and N G Lawrence for the Applicant M Keall for the Respondent

Judgment:

29 October 2021

JUDGMENT OF GAULT J

(Stay application)

This judgment was delivered by me on 29 October 2021 at 2:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Mr R J Hollyman QC and Mr N G Lawrence, Barristers, Auckland Mr V Naidu (applicant’s instructing solicitor), Newton Law, Auckland Mr M Keall, Barrister, Auckland
Mr C McGill (respondent’s instructing solicitor), Duncan King, Auckland

MZ VENTURES LTD v MILBANK [2021] NZHC 2896 [29 October 2021]

[1] Mr Milbank urgently seeks a stay pending appeal of the order in my judgment dated 2 August 2021 that MZ Ventures Ltd (MZ) is entitled to vacant possession of an industrial/commercial site of just over 1.3 hectares (the property) by 31 October 2021.1

[2] The stay application was only filed on 18 October 2021 and, following a telephone conference on 20 October 2021, I indicated that if it were to be determined this week I would need to determine it on the papers, and made timetable directions accordingly. The parties have been unable to secure an intermediate position by conditions or undertakings, and affidavit evidence and submissions have now been filed.

Factual background

[3] The factual background is set out in my judgment dated 2 August 2021. In brief, Mr Milbank has leased the property since November 2018.

[4] On 11 August 2020 MZ settled its purchase of the property from the former owner.

[5] On 9 September 2020 MZ gave Mr Milbank notice requiring compliance with his obligations under the lease to keep the property in good and proper repair and remove all rubbish, and advising him of its intention to inspect the property on 21 September 2020 in accordance with its rights under the lease.

[6] On 21 September 2020 Mr Farishta of MZ attended the property to inspect. Mr Milbank denied him entry. On the same day Mr Milbank served a trespass notice on Mr Farishta.

[7] On 25 September 2020 MZ served notice on Mr Milbank of its intention to cancel the lease under s 246 of the Property Law Act 2007 (PLA) in the event that Mr Milbank failed to remedy specified breaches by 15 October 2020. The specified breaches were:

1 MZ Ventures Ltd v Millbank [2021] NZHC 1964. I note the correct spelling is “Milbank”.

(a)failure to permit inspection;

(b)failure to keep and maintain grounds, lawns and yards in a clean and tidy condition, including to cut the grass and care for and maintain trees and gardens; and

(c)failure to remove rubbish.

[8]Mr…

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: [2021] NZHC 2896
Decision Date: 29 October 2021

CaseChat Overview and Summary

In the High Court of New Zealand, MZ Ventures Limited applied for possession of an industrial/commercial property following the cancellation of a lease held by Neil Richard Milbank. The Court was required to decide whether a stay should be granted pending the determination of an appeal against the Court's previous order that MZ Ventures Limited was entitled to vacant possession of the property by 31 October 2021. The key issues included whether the appeal would be rendered nugatory without a stay, the bona fides of the applicant, the effect of a stay on the respondent, the novelty and importance of the legal question at stake, the strength of the appeal, and the overall balance of convenience.

The Court found that the appeal would not be rendered nugatory if a stay were not granted, as damages were a sufficient remedy for this purely commercial lease. Furthermore, MZ Ventures Limited had undertaken to ensure that Mr Milbank could move back onto the property should his appeal succeed. The Court also noted that Mr Milbank had not been proactive in progressing the appeal and had delayed in applying for a stay, which did not weigh in favour of granting a stay. While the limitation issue under the Property Law Act 2007 was considered a novel point of law, the overall balance of convenience favoured MZ Ventures Limited's rights to the benefit of the judgment and the need to preserve Mr Milbank's position in case the appeal was successful. The Court concluded that it could do justice between the parties without a stay, whatever the outcome of the appeal.

The application for a stay pending appeal was declined.

Orders