Radich v Kearney

[2013] NZHC 3304

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2013-488-000455 [2013] NZHC 3304

BETWEEN  DOROTHY JUNE RADICH Plaintiff

ANDKIM JOCELYN KEARNEY and CRAIG BRENDON QUINTEN KEARNEY Defendants

Hearing:                   10 December 2013 (by telephone) Counsel:      D Grindle for Plaintiff

Defendants in Person

Judgment:                10 December 2013

JUDGMENT OF VENNING J

This judgment was delivered by me on 10 December 2013 at 5.00 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           WRMK Lawyers, Whangarei

Copy to:            Defendants

RADICH v KEARNEY [2013] NZHC 3304 [10 December 2013]

Introduction

[1]      The  plaintiff  brings  an  application  for  summary  judgment  against  the defendants.    She  seeks  an  order  for  vacant  possession  of  the  property  at  533

Wharekawa Road, Hokianga, more particularly comprised in CT NA49A/536 and

NA71D/921 (the property).

[2]      The plaintiff also seeks damages for breach of contract being judgment in the sum of $13,750 plus GST for rental.   The defendants oppose the application for summary judgment.

[3]      The proceedings were filed at Whangarei.  When called at that Court on 8

November 2013 they were transferred for call at this Court on 10 December 2013 given the nature of the application.  When the matter was called in this Court this morning Mr Grindle appeared, having travelled from Whangarei, but the defendants appeared  at  the Whangarei  High  Court.   The  Court  then convened  a  telephone conference with Mr Grindle and the defendants.   Both Mr and Mrs Kearney were present at the conference.

Background

[4]      The  defendants  are  the  previous  owners  of  the  property.    The  plaintiff purchased the property in September 2012 following a mortgagee sale by Rabobank. Following  the  sale  the  defendants  remained  in  occupation  of  the  property.    In October and November 2012 the plaintiff and the defendants entered a verbal agreement under which the defendants were to pay rental of $1,250 a month plus GST.   The plaintiff says the defendants only paid the rent for November and December 2012 and no further payments have been made.

[5]      In August 2013 the plaintiff agreed to sell the property to a third party.

[6]      Following that on or about 23 August 2013 the plaintiff gave notice to the defendants to vacate the property.   The defendants refused to vacate the property. Further correspondence followed before these proceedings were issued.

The defendants’ position

[7]      In their papers in opposition the defendants say that they reached a verbal agreement with the plaintiff that “she would help us to purchase the farm back at the same price she purchased it for”.

[8]      The defendants also make the point they do not personally farm the property. They  have  a  company  which  leased  the  farm  when  they  owned  it.    Animals belonging to that company are on the property.  The defendants also say that they have spent money on the farm since remaining in possession of it after the plaintiff bought it.

[9]      The defendants rely on the agreement with the plaintiff regarding their right to repurchase the property and also the short term lease provisions of the Property Law Act 2007.

Discussion

[10]     The difficulty for the defendants’ reliance on the right of first refusal is that it is expressed only in the vaguest terms and, importantly, it is an oral agreement.  To amount to an interest in land the agreement would have to be certain in its terms and also in writing.1

[11]     Further, while the defendants rely on a short term lease under s 208 of the Property Law Act 2007, (which can be by oral agreement), s 210(2) of the Property Law Act confirms that a short term lease is terminable at will and may be terminated by 20 working days written notice.

[12]     In this case the plaintiff through her solicitors gave notice on 23 August 2013 requiring the defendants to vacate the property.  The defendants confirmed receipt of that notice by their own correspondence of 2 September 2013.

[13]     Subsequently the defendants instructed a lawyer who took the point that the notice was inadequate, bearing in mind the provisions of the Residential Tenancies

1      Property Law Act 2007, s 24.

Act 1986.  That led to a further letter from the plaintiff’s solicitors on 18 September

2013 requiring the defendants to vacate the property.

[14]     On  any  view  of  it  the  defendants  have  had  considerably  more  than  20 working days to vacate the property.  Any short term lease that they may have had with the plaintiff under s 208 has been terminated under s 210.  There is no legal basis or right for the defendants to remain on the property.

[15]     The plaintiff is entitled to the order she seeks against the defendants, namely an order for possession of the property.  Having heard from the defendants I accept that it may take some time to completely vacate the property.  Given the time of year they will have until 4.00 pm on 3 January 2014 to vacate the property.

Result/orders

[16]     (a)       There will be an order that the defendants are to deliver up vacant possession of the property to the plaintiff by 4.00 pm on 3 January

2014.

(b)      The defendants are to pay the plaintiff ’s costs on a 2B basis together

with disbursements on the summary judgment application.

(c)      The balance of the plaintiff ’s claim against the defendants, together with any counterclaim the defendants may raise in respect of money they have spent on the property, is transferred to the District Court at

Whangarei for hearing.

Venning J