Ross v Allen

[2018] NZHC 1652

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CIV-2018-488-63

[2018] NZHC 1652

UNDER

Sections 244, 245 and 251 of the Property

Law Act 2007

IN THE MATTER

of a Lease commenced on 12 November 2015

BETWEEN

LIONEL DAVID ROSS, SANDRA ANNE ROSS and WALTER MICK GEORGE

YOVICH as trustees of the JOANDRA TRUST

Plaintiffs

AND

COLLEEN D ALLEN

Defendant

Hearing:

5 July 2018

Appearances:

P Cogswell for Plaintiffs

No appearance for Defendant

Judgment:

5 July 2018

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 5 July 2018 at 3.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Ross v Allen [2018] NZHC 1652 [5 July 2018]

[1]    The plaintiffs are the registered  proprietors  of  commercial  premises  at  19B Winger Crescent, Kamo, Whangarei, being the property comprised in a Certificate of Title with the Identifier NA95A/843, North Auckland, and being Lot 3 on Deposited Plan 158638.

[2]    The plaintiffs leased part of their commercial premises to the defendant, Colleen Allen, subject to the terms of an oral lease which began on 13 November 2015. The lease was of no fixed term but it required the tenant, Ms Allen, to pay a rental of

$51 per week, payable in arrears, and was terminable on one month's notice.

[3]    Ms Allen has fallen into arrears of her obligation to pay rent. Pursuant to s 210 of the Property Law Act 2007 (the Act), the lease is terminable at will. Oral notice of termination was given to Ms Allen about two months ago but she has refused to vacate the premises. Formal notice in writing of a breach of the obligation to pay rent was served on Ms Allen on 11 June 2018, but the breach has not been remedied and the plaintiffs now seek relief under ss 244, 245 and 251 of the Act.

[4]    Ms Allen was served with copies of the pleadings on 27 June 2018 but has taken no steps in the proceeding.

[5]    I am satisfied on the evidence provided by affidavit that Ms Allen's failure to remedy the notice issued under s 245 of the Act entitles the plaintiffs to the relief sought.

[6]The amount of unpaid rental as at 3 July 2018 is $2,937.68.

[7]Accordingly, I enter judgment for the plaintiffs and make the following orders:

(a)An order granting the plaintiffs exclusive possession of the premises at 19B Winter Crescent, Kamo, Whangarei.

(b)An order that the lease between the plaintiffs and the defendant that commenced on 13 November 2015 shall be cancelled from the date of this Order.

(c)Judgment for unpaid rental due to 3 July 2018 in the sum of $2,937.68.

(d)The defendant shall pay the plaintiffs' costs in the proceeding calculated on a Category 2B basis and disbursements as fixed by the Registrar.

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

Toogood J