Paros Property Trust Limited v Smith

[2018] NZHC 3092

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2527 [2018] NZHC 3092

BETWEEN

PAROS PROPERTY TRUST LIMITED

Applicant

AND

TIMOTHY SMITH Respondent

Hearing:	On the papers
Counsel:	J Wilson for Applicant
Judgment:	28 November 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 28 November 2018 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Brown Partners, Auckland

PAROS PROPERTY TRUST LTD v SMITH [2018] NZHC 3092 [28 November 2018]

[1]      I have an application for leave to proceed by way of originating application. The subject matter in dispute concerns a purported cancellation of a lease by the respondent, who alleges that the applicant had repudiated the lease by frustrating the respondent’s right to freehold.  The applicant’s position is that the respondent did not validly invoke the relevant process under the lease.  The applicant submits that an originating application is appropriate because:

(a)There is no need for particularised pleadings in order to identify and resolve the matters at issue – the key instrument in question is the applicable deed of lease and the core facts will be readily established by affidavit evidence.  The applicant submits that factual conflicts are therefore likely to be very limited.

(b)Discovery, interrogatories, and the usual interlocutory steps are unnecessary to resolve the proceedings.

(c)Matters relating to leases, such as cancellation and relief, are routinely dealt with by the Court by way of originating application and must be commenced in that form.

[2]      I issued a minute indicating that my preliminary view, following a review of the affidavit evidence, was that the background to this matter is factually dense and as such, it does not immediately stand out as suitable for an originating application. Nonetheless, I indicated that if the issues were confined to an assessment of whether a power existed to cancel the lease on defined circumstances, then it would appear to be amenable to an originating application.   I invited the proposed respondent to indicate if there was any opposition to the application for leave.

[3]      Further to that minute, the Registry received an email from the respondent stating that a notice of opposition will not be filed.  On that basis, I am prepared to grant the application to proceed by way of originating application on the understanding that the primary issues will be confined to an assessment of whether a power existed to cancel the lease on defined circumstances.

[4]      There being no opposition to the application, costs are reserved.