Proprietors of Wakatū v Alekna

[2024] NZHC 3445

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2024-442-3

[2024] NZHC 3445

UNDER

Section 244 of the Property Law Act 2007

IN THE MATTER

of Lease number 5425528.2 (Leasehold Record of Title 66973 – Nelson Registry) at 25 Motueka River Westbank Road

BETWEEN

THE PROPRIETORS OF WAKATŪ

Applicant

AND

PERI ALEKNA

Respondent

Hearing:	18 November 2024
Counsel:	H M McCarthy for Applicant No appearance for Respondent
Judgment:	19 November 2024

JUDGMENT OF RADICH J

[1]        On 7 February 2024, the applicant applied by originating application for the following orders:

(a)granting the applicant possession of the land comprised in lease number 5425528.2 (the property);

(b)cancellation of the lease, number 5425528.2;

(c)payment of outstanding rent and/or demesne profit (both including GST) up until the date on which the lessee vacates the property;

PROPRIETORS OF WAKATŪ v ALEKNA [2024] NZHC 3445 [19 November 2024]

(d)interest on all judgment sums pursuant to s 10 of the Interest on Money Claims Act 2016; and

(e)costs pursuant to clause 12 of the lease.

[2]        The applicant served a notice of intention to cancel the lease on the respondent on 31 October 2023. The notice, given pursuant to s 245 of the Property Law Act 2007, complied with the terms of that provision appropriately. It referred to the rental that was due, the action required to remedy the default, the consequences if default were not remedied and to the right to apply to the Court for relief against cancellation under s 253 of the Property Law Act.

[3]The breaches referred to in the notice were not remedied.

[4]        This application and an affidavit of service of the Property Law Act notice were served on the respondent on 7 March 2024. The respondent has taken no steps to oppose the application or to otherwise be involved with the proceeding.

[5]        The applicant has acted reasonably throughout the course of this proceeding. It has adjourned the hearing of the application for the purpose of making substantive orders on a number of occasions to give the respondent further time to sell the leased premises or otherwise to resolve the breach issues. For example, endeavours were made by the respondent to market and sell its leasehold interest. However, matters have not progressed and, as confirmed when the case was called in the Judge’s Chambers List yesterday, the applicant now seeks the relevant orders.

[6]        Rental arrears have continued to accrue since the application was filed and the applicant has incurred legal costs in issuing the s 245 notice and in pursuing this application. Under cl 12 of the memorandum of lease to which the application relates, Wakatū is entitled to the payment of these costs.

[7]        Moreover, under s 251 of the Property Law Act, the Court, if it makes an order cancelling a lease, it may order the lessee to pay rent up to the date of cancellation and

to  pay  reasonable  compensation  for the breach.    That compensation will include reimbursement of the lessor’s reasonable expenses.

[8]        Wakatū claims $32,110.23, comprising legal costs of $6,157.99 and outstanding rent and rates of $25,852.24, together with its disbursements in this proceeding. Details of all of those sums have been provided in evidence.

[9]It is appropriate now for the application to be granted.

[10]Accordingly, I make the following orders:

(a)Granting the proprietors of Wakatū immediate possession of the property known as 25 Motueka River Westbank Road, Brooklyn 7198;

(b)Cancelling lease number 5425528.2 (Legal Identifier 66973, registered in the Nelson Land Registration District);

(c)That the respondent pay the applicant $25,852.24 for outstanding rental and rates due as at the date of determination;

(d)That the respondent pay to the applicant $7,123.72, comprising:

(i)$6,157.99 being the applicant’s legal costs payable under the relevant lease;

(ii)$965.73 for disbursements.

(e)Interest on all judgment sums pursuant to s 10 of the Interest on Money Claims Act 2016 until the date of payment.

Radich J

Solicitors:

Pitt & Moore, Nelson for Applicant