Peegeecee Limited v Parkview on Hagley Limited

[2018] NZHC 2558

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000676 [2018] NZHC 2558

BETWEEN

PEEGEECEE LIMITED,

RJSN PROPERTIES LIMITED, SULLIVAN ENTERPRISES (2007) LIMITED,

AB HOLDINGS (2007) LIMITED, KESWICK ENTERPRISES LIMITED, L & M HOLDINGS (2008) LIMITED, AND RUSSELL MACKIE AND SUZANNE MACKIE (T/A HAGLEY PARKVIEW PARTNERSHIP), TRAVELLERS INN LIMITED,

JAYA INVESTMENTS LIMITED, ANKUR INVESTMENTS LIMITED AND M & A LIMITED

Applicants

AND

PARKVIEW ON HAGLEY LIMITED Respondent

Hearing:	28 September 2018
Appearances:	T Jackson for Applicant G K Riach and F Hughes for Respondent
Judgment:	28 September 2018

ORAL JUDGMENT OF GENDALL J

[1]      Before the Court today is an opposed application by the applicants in this proceeding for a priority fixture.   The substantive proceeding itself relates to an application seeking an order for possession of land.  That substantive application is

also opposed by the respondent.

PEEGEECEE LTD v PARKVIEW ON HAGLEY LTD [2018] NZHC 2558 [28 September 2018]

[2]      So far as the substantive application before the Court is concerned, as I understand it, the applicants seek orders against the respondent to relinquish possession of units at Park View Hotel, 1 Riccarton Road, Christchurch, which are the subject of a lease which is now between the respondent as lessee and the applicants as owners of the land as lessor.

[3]      Turning now to the application for a priority fixture, the grounds on which that order is sought are specified in the application as follows.  Effectively:

(a)      The respondent, it is said, has breached the lease;

(b)The applicants say they issued a notice to the respondent under s 246 of the Property Law Act which expired unremedied on 6 September

2018;

(c)      The respondent, it is said, has failed to:

(i)       Acknowledge the validity of the Property Law Act notice; and

(ii)      To relinquish possession of the property and/or the business of letting the apartments permitted by the lease.

(d)The applicants contend they have suffered and continue to suffer losses as a result of the respondent’s alleged breaches of the lease.   The applicants then say the respondent’s failure to comply with the lease has led to the imminent prospect that:

(i)The applicants will not be able to meet loan repayments on the properties;

(ii)      Mortgages granted as security for loans on the properties will be enforced by the lenders; and

(iii)     The properties will be sold at mortgagee sale.

(iv)     The applicants contend they would suffer serious prejudice if there is delay in replacing the respondent as lessee and manager of the properties in question under the lease.

[4]      That application for a priority fixture is opposed by the respondent effectively on the following grounds:

(a)The respondent says the applicants have not shown any exceptional circumstances which would make it appropriate to allow them to gain preference over others in having their case heard;

(b)The respondent contends the applicants have produced no evidence of financial hardship or serious prejudice if a fixture is allocated in the normal fashion; and

(c)The respondents say the applicants have produced no evidence to support their allegation that the properties in question may be at imminent risk of a mortgagee sale here.

[5]      In this case, it is quite clear to me from material before the Court, that this dispute in some form or other has continued between these parties for some time and has quite a considerable history. This seems to be reflected in the fact that for at least the last two or three years there has been considerable correspondence between legal advisors acting for each of the parties and, indeed, requirements for accounts of the respondent to be completed and audited, as I understand it, have been carried out.

[6]      Weighing up all of these matters, I am of the view in all the circumstances prevailing in this case that there are no exceptional circumstances which exist here which require that the applicants should have a priority fixture for hearing of this present proceeding.   There is no real evidence before the Court of the imminent financial predicament claimed by the applicants to support the grounds they have advanced.

[7]      Notwithstanding that conclusion, as I discussed with counsel today, this is a matter which, on enquiry, can be accommodated without undue delay in this Court. This should, to a large extent, meet concerns expressed here by the applicants as I have indicated to counsel today that a two day hearing of this, and a further matter I note below, can be accommodated on 4 February 2019.

[8]      The further matter to which I refer is an application signalled by Mr Riach, counsel for the respondent, today which is to involve an application for relief against forfeiture about to be filed on behalf of the respondent.  Directions regarding that and other matters concerning this proceeding are to follow.

[9]      With all these matters in mind, I now make the following directions in this proceeding:

(a)      The application by the applicant for a priority fixture here is dismissed.

The request for a priority fixture is declined.

(b)Notwithstanding this, the substantive proceeding here together with the application foreshadowed by the respondent for relief against forfeiture under the lease is now set down for hearing (two days are allowed) commencing in this Court on 4 February 2019.

(c)Within 15 working days of today, the respondent is to file and serve the application for relief against forfeiture which has been signalled today together with its affidavit evidence in support.

(d)Within a further 10 working days of that date, the applicants are to file and serve any reply evidence they may wish to bring in this matter.

(e)The Registrar is directed to arrange a pre-trial telephone conference of all parties to this proceeding at an appropriate date in early December

2018 to ensure that matters are on track towards the hearing in this proceeding.

[10]     Mr Riach, counsel for the respondent, noted before me today an objection he raises to certain aspects of the evidence which has been provided on behalf of the applicants in this matter.  That is something to be discussed and hopefully resolved between counsel for the parties. Leave is reserved for any party to approach the Court further for assistance on 48 hours’ notice if counsel are unable to resolve this issue between themselves direct.

[11]     Lastly, I note that Mr Riach for the respondent seeks costs with respect to the applicant’s present application for a priority fixture, an application which has effectively failed.   As to that aspect, I have not heard detailed submissions from counsel.  On its face, it would seem that the respondent would be entitled to an order for costs on the priority fixture application which I have dismissed.  Under all the circumstances here, however, I am of the view that this is a matter which can properly be noted and taken into account when the ultimate outcome of this proceeding is determined.  This will be some way down the track.   On that basis, however, effectively, costs on the application before me today are officially reserved.

...................................................

Gendall J

Solicitors:

Hornabrook, MacDonald

Paul Sills, Auckland

Quentin Hix Legal Limited, Timaru

Harmans Lawyers, Christchurch