Proprietors of Mawhera Incorporation v Sullivan

[2017] NZHC 1741

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2017-409-247 [2017] NZHC 1741

BETWEEN

THE PROPRIETORS OF MAWHERA

INCORPORATION Plaintiff

AND

JASON MICHAEL SULLIVAN First Defendant

MICHELLE ALICE BARBER Second Defendant

Hearing:	24 July 2017
Appearances:	V A Nicholls for Plaintiff No appearance for Defendants
Judgment:	26 July 2017

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1]      The plaintiff, Mawhera Incorporation (“Mawhera”), made application for possession of premises at 43 Boundary Street, Greymouth, cancellation of a lease of those  premises  dated  1  July 2006,  and  judgment  in  the  amount  of  $21,700  as of 20 July 2017 in respect of outstanding rent.  It also seeks costs and disbursements on the application.

[2]      The defendants are in default of rent payable under their lease with Mawhera and notice was served on them under ss 245 and 246 of the Property Law Act 2007 (“the Act”) of the intention to cancel the lease for breach of the covenant to pay rent, and requiring the breach to be remedied by Friday 31 March 2017.  The defendants

did not comply.

THE PROPRIETORS OF MAWHERA INCORPORATION v SULLIVAN & BARBER [2017] NZHC 1741 [26 July 2017]

[3]      These  proceedings  were  served  on  the  first  defendant,  Mr  Sullivan,  on

28 April 2017, pursuant to an order for substituted service.   Mr Sullivan has not responded, nor anyone else on his behalf.

[4]      The  proceedings  were  served  on  the  second  defendant,  Ms  Barber  on

1 May 2017.  Ms Barber has been in communication with counsel for the plaintiff and has been living at the property, and has made proposals for repayment of the rent owing.  She has been making payments which have reduced the balance owing.  It seems clear that she has been attempting to address the matter in a responsible way.

Discussion and Disposition

[5]      The plaintiff is entitled to judgment as the defendants are in default and no relief is sought by them.

[6]      The following orders are made:

(i)the plaintiff may take possession of the premises at 43 Boundary Street, Greymouth 70805, provided the defendants are given reasonable notice to vacate.  Leave is reserved to revert to the Court for direction should that be necessary;

(ii)the lease dated 1 July 2006 between the plaintiff and the defendants is cancelled;

(iii)judgment is entered against the defendants in the sum of $21,700 being the amount of outstanding rent as of 20 July 2017;

(iv)costs  and  disbursements  of  the  application  are  to  be  paid  by the defendants is fixed in the sum of costs $8,474, and disbursements

$660;

(v)costs and disbursements are to be paid by the first defendant for the cost of obtaining an order for substituted service in the sum of $446; and

(vi)     no order is made in respect of anticipated disbursements.

[7]      Leave is reserved for any further order or direction required associated with the execution of this order.

……………………………………..

Nicholas Davidson J

Solicitors:

Saunders & Co., Christchurch

First and Second Defendants