Silver Fern Hanmer Limited v Giles
[2024] NZHC 3902
•18 December 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2024-409-676
[2024] NZHC 3902
BETWEEN SILVER FERN HANMER LIMITED
Applicant
AND
TERRENCE NEIL GILES AND
LEICESTER TRUSTEE SERVICES LIMITED
Respondents
Hearing: 17 December 2024 Appearances:
B O’Callahan for Applicant R A Hearn for Respondents
Judgment:
18 December 2024
JUDGMENT OF MANDER J
[1] Silver Fern Hanmer Ltd (Silver Fern) have applied for relief from the cancellation of leases set out in notices issued, pursuant to the Property Law Act 2007, for the failure to pay rent and outgoings.1 Pending determination of that application, it seeks injunctive relief preventing the respondents, the trustees of the Giles Family Trust (the Trust), from re-entering the premises the subject of the leases, or otherwise cancelling the leases. The Trust opposes the making of any injunctive orders.
Background
[2] Silver Fern is the lessee, by way of assignment executed in December 2017, of three leases of premises situated in Hanmer Springs from which it operates a motel
1 Property Law Act 2007, ss 244 and 245.
SILVER FERN HANMER LTD v GILES [2024] NZHC 3902 [18 December 2024]
bar and restaurant. The leases are for a term of 15 years commencing 1 January 2018, and have eight years to run.
[3] The rental under the leases has been the subject of disagreement and negotiation between the parties for a number of years. Silver Fern has been attempting to renegotiate the rental provisions since mid-2021. It says the rental under the leases has become well in excess of market rates and is commercially unrealistic. It alleges that since July 2022 it has been paying rent in accordance with an “interim arrangement” while negotiations continued regarding a reduced rental. The Trust denies any “interim arrangement”. It maintains arrears of unpaid rental have accumulated over this period and remain outstanding. This is not disputed. As a result, in September 2024, the Trust issued Silver Fern with statutory demands and a set of Property Law Act (PLA) notices giving notice of an intention to cancel the leases should the rent and other expenses and interest remain unpaid. Silver Fern responded by filing an application to set aside the statutory demands for payment of the outstanding rent. Those proceedings have been set down for hearing on 21 February 2025.
[4] On 4 December 2024, the Trust served further PLA notices notifying its intention to cancel the leases on the expiry of 10 working days from their service in the absence of compliance. The Trust also formally advised Silver Fern of its intention to re-enter the premises, with the assistance of police officers, on 19 December 2025 should the outstanding amounts of rent not be paid. The December PLA notices concern the same outstanding rent the subject of the statutory demand proceedings.
[5] Additionally, another set of notices, served at the same time, seek payment in respect of a maintenance fund that is provided for under the leases. Silver Fern’s position is that the maintenance fund contemplated by the leases has always been considered by the parties to be redundant. They have to date proceeded on the basis that Silver Fern would undertake the required maintenance rather than pay into the maintenance fund. It maintains the Trust has never, prior to the issuing of the December notices, sought it to make payment into the maintenance fund and denies it its liability to do so.
[6] Silver Fern’s application for urgent interim relief from the proposed re-entry and cancellation of the leases was made ex-parte but was notified to the Trust on a Pickwick basis. It was set down on notice to both parties for hearing this week on the basis the substantive application for relief could be heard together with the application to set aside the statutory demands on 21 February 2025. The purpose of the urgent hearing this week was limited to the issue of determining whether injunctive relief should be granted to Silver Fern to prevent the Trust from re-entering the premises and cancelling the leases pending the hearing of the substantive applications in February.
The parties’ broad positions
Silver Fern
[7] Silver Fern maintains the rental under the leases has for some period been well in excess of the market and is not commercially viable. It claims that, while negotiations between itself and the Trust have been ongoing, there existed, in effect, a tacit agreement that it would be acceptable for it to pay a reduced rental which it says constituted an interim arrangement while the negotiations continued between the parties and that, while the relationship between them has at times been fraught, the Trust acquiesced to this interim arrangement while they attempted to find agreement to an alternative rental arrangement.
[8] Silver Fern does not dispute its obligation to make good the rental shortfall that has accumulated under the leases. However, it considers that, in the circumstances, it is entitled to “reasonable time” to pay the accumulated arrears. It has applied to set aside the statutory demands on this basis, and that issue is to be determined in February, in accordance with the fixture allocated by this Court in October 2024.2 It is noted that the Trust took no further action after the allocation of that fixture under the original PLA notices that were issued in September at the same time as the statutory demands.
[9] Silver Fern submits that it is presently working towards getting the business operating for the coming holiday season and gathering funds necessary to pay the
2 Silver fern Ltd v Giles HC Christchurch CIV-2024-409-505, 17 October 2024.
shortfall owed to the Trust. However, further friction between itself and the Trust appears to have developed as a result of a dispute regarding redecoration and maintenance work commenced in late November, which it is submitted has led the Trust to issue new PLA notices to cancel the leases and re-enter the premises.
The Trust
[10] For its part, the Trust maintains that the payment of a reduced rental was a unilateral step taken by Silver Fern, with which it at no stage either agreed or acquiesced. The Trust emphasises that it has periodically throughout its discussions regarding the rental issue with Silver Fern sought full payment of the accumulating rental arrears. The Trust opposes interim relief pending the February fixture on the basis there is no serious issue to be tried.
[11] The Trust acknowledges that the set of PLA notices issued in respect of its claim of overdue payments to the maintenance fund do give rise to a serious issue to be tried. It no longer seeks to rely on those particular notices for the purpose of opposing the application for interim relief pending determination of the substantive application or to justify cancellation of the leases. However, it maintains the other set of PLA notices relating to rent, interest and costs payable to the Trust under the lease do not give rise to any seriously triable issue, and that what Silver Fern seeks to contest in respect of its demand for payment of the balance of the rent owing does not meet the necessary threshold for interim relief.
Is there a serious issue to be tried? Silver Fern claims there is.
[12] Silver Fern claims there are two related issues which are required to be tried that support interim relief being granted pending argument of its substantive application for relief in February next year. Firstly, it argues the Trust is estopped from demanding the outstanding rent payable under the lease in the absence of it having been provided with “reasonable time” to make payment given the background of protracted negotiations regarding the rental that have taken place between the parties over such a long period. Secondly, it further, or alternatively, claims it is entitled to be provided the opportunity of paying the outstanding rent for the purpose of obtaining substantive relief against forfeiture of the leases notwithstanding the present rental
arrears, in accordance with this Court’s equitable jurisdiction and that, in the circumstances, until its substantive application is heard it would not be equitable for it to have to forfeit the leases.
Estoppel
[13] Silver Fern bases its claim of equitable estoppel on what it submits was the existence of an interim arrangement to pay a lesser amount of rental over the long period the parties were in negotiation. It does not deny that, from time to time, the Trust made demands of it to make full payment of the amount owing under the leases. However, it argues that up until September 2024 such demands were followed by continued acquiescence to the interim arrangement while they continued to negotiate in good faith.
[14] Silver Fern effectively argued that it was ambushed by the abrupt change of approach by the Trust when it issued statutory demands and PLA notices in September 2024, after what was termed a “long course of conduct” involving negotiations over a sustainable rental arrangement. It is suggested Silver Fern’s representatives were led to believe some accommodation could be reached, which gave rise to an expectation that Silver Fern would be given a reasonable period of time to pay the outstanding arrears, in the event, that, contrary to the expected resolution between the parties, the negotiation did not finally result in any agreed position.
[15] It was submitted the breakdown in the negotiation was precipitated by a valuer’s report Silver Fern obtained, with the approval of the Trust, to provide an opinion as to an appropriate market rental. It was argued the content of that report provoked an adverse response on the part of the Trust. On 9 August, the parties met. Silver Fern claims that while it was told that a substantial amount of unpaid rental needed to be paid, matters were left on the basis that Silver Fern would come back with a further proposal. However, to its surprise, it was then unexpectedly served with PLA notices and statutory demands in early September.
[16] Mr O’Callahan, who appeared on behalf of Silver Fern, sought to argue that the estoppel argument rested on the cumulative effect of this ongoing course of conduct by the Trust which had to be viewed as a whole. He relied on what he
described was the long period of acquiescence (two years and two months) by the Trust to the interim arrangement while the parties continued to negotiate. It was submitted that took place against an underlying problem, being a lease where the rent during a period of extremely high inflation had got increasingly further away from any comparable market rental for the same type of commercial premises.
[17] It was submitted the Trust would have been aware, given the extended period over which the interim arrangement was allowed to remain in place, that it would be increasingly difficult for Silver Fern to address the shortfall unless provided with a reasonable period in which to do so. Further, that what was to be considered reasonable needed to take into account the length of the lease, which had more than eight years to run, particularly when compared with the very limited timeframes provided by the PLA notices. Further, the reasonableness of the period provided in which to pay, also needed to reflect Silver Fern’s obvious commitment to the lease, the fact it had already made substantial payments towards reducing the debt, and its recent expenditure on redecoration and maintenance of the premises.
[18] The basis upon which the Trust’s “acquiescence” is said to have given rise to estoppel is by representation by conduct. It was argued that Silver Fern relied on the Trust’s approach to the ongoing rental issue between them and that its conduct was to the effect that if Silver Fern continued to negotiate in good faith, it would not be made the subject of recovery action in respect of the arrears, at least not without providing it with a reasonable opportunity to pay that outstanding amount. It was argued that Silver Fern’s reliance on this representation by conduct caused it to continue to pay the reduced amount of rental in the anticipation negotiations would continue. The claimed detriment is said to be the untenable position it would find itself if negotiations broke down and it was required to make up the shortfall immediately. Mr O’Callahan contended that in those circumstances the equitable remedy would not absolve Silver Fern from having to meet its obligation to pay but would allow it a reasonable time to do so before recovery action was commenced.
Equitable relief
[19] As an alternative to estoppel, Mr O’Callahan argued that relief from the consequences of non-payment of rent “follows equitable principles” and that Silver Fern, in the circumstances, had a reasonable argument that this Court should exercise its equitable jurisdiction to grant relief in the event it was able to pay the outstanding rental. While failure by the time of the hearing of the company’s substantive application for relief, in the face of its assurances that it will meet its obligations, might properly result in cancellation of the leases, it was submitted that it would not be right to bring the leases to an end now and that forfeiture at this time would not be equitable.
[20]Reliance was placed on the following passage, adopted by Randerson J in
Harlow Finance and Leasing Ltd v Sterling Nominees Ltd:3
Save in exceptional circumstances, the function of the Court in exercising this equitable jurisdiction is to grant relief when all that is due for rent and costs has been paid up, and (in general) to disregard any other causes of the complaint that the landlord may have against the tenant. The question is whether, provided all is paid up, the landlord will not have been fully compensated; and the view taken by the Court is that if he gets the whole of his rent in costs, then he has got all he is entitled to so far as rent is concerned, and extraneous matters of breach of covenant and so forth are, generally speaking, irrelevant.
[21] Mr O’Callahan submitted that this is not a situation where Silver Fern’s record of payment of rental has been so poor that relief, in the event it is able to make payment, should be refused, or a situation so hopeless that the company should not be afforded the opportunity to remedy the breach which, it was claimed, it would be able to do by the time of the February hearing or, at least, substantively so by that date. It was stressed that the lease itself is security and a valuable asset which Silver Fern should not have to forfeit if its breach can be remedied which, it is submitted, it may realistically be able to do by the time of the February fixture.4
[22] Finally, Mr O’Callahan submitted, in anticipation of a submission that Silver Fern’s position is so hopeless and its record of payment so poor as to render it ineligible for relief, that such a contention could only be adequately assessed by a
3 Harlow Finance and Leasing Ltd v Sterling Nominees Ltd HC Auckland M1262/00, 17 August 2000 at [7], citing Gill v Lewis [1956] 2 QB 1, 13.
4 Storeageone Kapiti (2012) Ltd v Sharja Ltd (2022) 23 NZPR 545 at [24].
more detailed review of the history of the dealings between the parties, and could only be undertaken at a substantive hearing of the application for relief.
Is there a serious claim to be tried? The Trust maintains there is not
[23] In opposition to the granting of injunctive relief, the Trust submitted there was neither any serious question to be tried in respect of Silver Fern’s default regarding the payment of rental arrears, nor that this outstanding balance was notz immediately payable without further delay. It was submitted there was an onus on Silver Fern to produce evidence that there is a real prospect it can succeed on its substantive application for relief which it had failed to discharge.
Estoppel
[24] The Trust submitted the evidence upon which Silver Fern relies is not capable of giving rise to an equitable estoppel. In the absence of the type of unequivocal conduct upon which such a claim rests, the alleged representation by the Trust is not sufficiently clear to support such a remedy. References in the affidavit evidence of the representatives of Silver Fern of there having been “various discussions” regarding the way forward or of an “understanding” between the parties are all far too vague to found any claim of estoppel, particularly when considered with the regular periodic demands made by the Trust for full payment of the arrears. Such demands were being made as late as July 2024, on the basis that payment would be required within 90 days. Silver Fern was always on notice of the need to pay the arrears and, it was submitted, throughout the negotiations it was clear that, while a prospective arrangement regarding a reduced rental may be entertained, the arrears had to be paid in full.
[25] The Trust argued that, taking Silver Fern’s argument at its highest, the outcome of the last meeting between the parties on 9 August 2024, when a representative of the Trust was said to have agreed to reconsider a proposal put forward by Silver Fern, was not capable of founding a belief or expectation that such a proposal or any counter offer would be accepted, let alone one that would affect its existing liability for outstanding rental. To the suggestion the Trust by its conduct had somehow represented it would allow time for payment of the arrears, it points to the history of the demands it has made in support of its submission that there could be no basis for
a belief that something in the order of six months, as was sought (at least originally) by Silver Fern, would be permitted. To the contrary, previous demands stipulated payment within a far shorter timeframe.
[26] The Trust argued that there is an absence or insufficient evidence of Silver Fern having taken any action in reliance of the alleged representation, and that Silver Fern’s position is entirely the result of its own impecuniosity, as opposed to having taken steps in reliance upon a promise or representation by the Trust. It was argued the fact the parties were engaged in commercial negotiations cannot, of itself, give rise to any reasonable expectation the Trust would withhold formal enforcement of Silver Fern’s rental obligations, or not require it to discharge its contractual obligations expeditiously in the event negotiations failed.
[27] It was emphasised by the Trust that there can be no dispute the outstanding rental arrears was always owed by Silver Fern. It was submitted there is no evidence of any action or step Silver Fern has taken to its detriment in reliance on anything the Trust has said or done, or that arises from any reliance created by a belief or expectation generated by the Trust that the company would not have to pay the outstanding rent. Nor can Silver Fern identify any unconscionability on the part of the Trust from seeking to enforce its contractual rights.
[28] Mr Hearn, on behalf of the Trust, observed that the parties are well resourced commercial parties, with the Trust having simply demanded what has always been payable to it under the leases, and that it was Silver Fern’s responsibility to organise its financial affairs in a way that would allow it to comply with its contractual obligations as they fall due, in the absence of being able to negotiate some alternative arrangement. It was not therefore unconscionable for the Trust to hold Silver Fern to its contractual obligations, and there was no arguable basis upon which to found an estoppel.
Equitable relief
[29] In relation to the alternative seriously triable issue regarding potential relief from the effect of the PLA notices, Mr Hearn submitted the question of whether there was any possibility of obtaining relief turned on whether the outstanding rent remains
unpaid. It was emphasised that payment of rent arrears results in a presumptive right to relief,5 and that it will be a “rare case” for relief to be granted without the payment of the arrears.6 The Trust maintains there is no realistic prospect of the rent being paid and therefore no reasonable prospect of relief being granted—in turn, no serious question is therefore left to be tried.
[30] Mr Hearn calculated that, with a recent payment of $50,000 having been made by Silver Fern on the eve of the hearing, the company would still need to pay the Trust some $30,000 each week over the intervening period prior to the hearing of the substantive application for relief in mid February to meet its outstanding rental obligations. Mr Hearn argued that this was not realistic and that insufficient evidence had been adduced to satisfy the Court there was any real prospect of Silver Fern being able to meet its obligations by that date. It was noted that, in addition to the payment of those arrears, rent will continue to accrue in the sum of approximately $177,000 over the next three months (without any CPI adjustment as from 1 January 2025).
[31] Mr Hearn presented calculations regarding the minimal likelihood, if not impossibility, despite the business’s claimed profitability from summer trading over the forthcoming months, of income being generated that would be sufficient to meet Silver Fern’s significant arrears. It follows that further major funding would be required from the shareholders. However, there is an absence of evidence that this would be forthcoming and, indeed, a dearth of information regarding what financial options, if any, were open to the company to meet its obligations and pay off the outstanding rent by 21 February.
Balance of convenience
[32] Insofar as where the balance of convenience lies, Mr Hearn did not seek to oppose Silver Fern’s application by arguing that factor favoured the Trust. He confined his argument to whether, in the circumstances, there is a triable issue worthy of serious argument. The maintenance of the status quo prior both to the hearing of the substantive application for relief and Silver Fern’s application to set aside the
5 Mulholland v Waimarie Industries Ltd (2009) 10 NZCPR 590 at 594.
6 Andrew v Horner HC Wellington M459/95, 16 November 1995.
statutory demand favours the company being allowed to remain in occupation of the premises in order to permit its business to operate and allow it to earn income during the busy summer months.
[33] Having regard to the lengthy period the parties have been in negotiations and the arrears have been outstanding, the staying of enforcement action for approximately two months, overall, would represent only a minimal delay. The consequences for Silver Fern should it lose its premises would be very severe and likely bring its business to an end. Arguably, the damage would be irreparable and incapable of adequate compensation.
Decision
[34] I do not consider Silver Fern’s application for relief can realistically rely on any claimed estoppel. The elements of equitable estoppel are not available in the circumstances. Even on the basis of the evidence proffered by the representatives of Silver Fern, such a claim lacks a proper foundation. The pleaded “acquiescence” by the Trust that is said to have generated the expectation of a renegotiated rental, but does not extend to any claim that the outstanding arrears would be cleared or adjusted. There is no dispute the moneys are owed. All that is argued is that because of the long ongoing nature of the discussions between the parties regarding a possible reformulation of the rental going forward, a reasonable expectation was implicitly engendered that a period of grace would be extended to Silver Fern to pay the arrears as part of some renegotiated settlement regarding the rent.
[35] Having regard to the periodic demands that the arrears be paid and Silver Fern’s acknowledged liability for those arrears which appears to have never been disputed, and is certainly not contested for the purposes of the present application, the idea that an indeterminate “reasonable” period of grace would be extended to Silver Fern or could be reasonably anticipated by the company is unrealistic. Moreover, I accept Mr Hearn’s submission that it is not apparent that any misapprehension on the part of Silver Fern caused them to act to their detriment, or engendered a reliance which has prejudiced their position, at least not to any extent beyond what would be its inevitable position given the outstanding rental it owed. I accept Mr Hearn’s
submission that it cannot be unconscionable for a commercial landlord to insist on payment of longstanding rental arrears from another commercial entity in accordance with its contractual obligations. It follows that I do not consider there is any seriously triable issue based on a claim of equitable estoppel upon which Silver Fern can tenably rely.
[36] I turn then to the alternative argument upon which Silver Fern relies, that it should be provided with the opportunity of seeking relief from the effect of the PLA notices and forfeiture of the leases by paying the rental arrears and meeting its current rental obligations. By that means, it is argued it can achieve substantive relief from the effect of the notices and have the statutory demands set aside. The Trust’s position is that this is simply unrealistic given Silver Fern’s financial situation, at least as it is known, and the level of income the business can potentially generate in the most optimistic of trading conditions. I acknowledge on the available evidence that is not an unreasonable assessment. However, it does not remove the possibility of Silver Fern obtaining further third party funding or shareholder support to meet its obligations in order to allow it to continue to trade as a viable business—speculative as that scenario may presently be.
[37] I acknowledge Mr Hearn’s submission that there is a dearth of information regarding what other funding sources would be available to Silver Fern to meet its rental arrears and its ongoing obligations under the leases, but, equally, those leases represent a valuable asset, and there is no indication that Silver Fern is other than committed to continuing in business and utilising the eight-year balance of the term of the leases if it is able. The alternative to providing Silver Fern temporary interim relief until the hearing of its substantive application will be enforcement of the cancellation of the leases which would likely result in irreparable damage to the company’s business as a result of its premises being physically repossessed at this time. Conversely, it is not apparent what damage or prejudice would be incurred by the Trust by permitting Silver Fern the opportunity to remain in occupation and meet its obligations in the limited period before the hearing of Silver Fern’s substantive applications in the new year.
[38] Silver Fern has made some substantial payments since negotiations ended in September 2024. While I acknowledge that, as matters presently stand, the company’s ability to satisfy the rental debt by the date of the hearing of its application for relief appears doubtful, the Trust’s remedies will remain intact in the interim. As already observed, there is a dearth of financial information regarding Silver Fern and its shareholders’ financial position and capabilities. Mr O’Callahan candidly acknowledged that the company has not made its financial position entirely clear. However, there is evidence that Silver Fern is part of a group of companies which is known as the VR Group that operate accommodation facilities throughout New Zealand and overseas.
[39] Having taken all these considerations into account and notwithstanding some reservations, I have concluded the overall interests of justice favour Silver Fern being granted interim injunctive relief on the basis sought for the limited period prior to the hearing of the substantive applications in two months.
[40] An undertaking as to damages has been filed. Issue may be taken as to the worth of that undertaking in the absence of detailed information regarding the financial position of the company. However, no formal challenge has been made as to its worth, and I proceed on the basis that it is sufficient. Given the assurance the directors have provided that the company is expected to be in an improved financial position over the following months, it is likely there are wider reputational issues for Silver Fern’s parent company and the corporate group of which it is a part, although I accept that is difficult to judge.
[41] Finally, I observe that much of the evidence regarding Silver Fern’s expected improved financial position, as a result of impending holiday trading and/or the provision of further shareholder funds, was (at least initially) premised on a timeframe that extended to 31 March 2025. As will already be readily apparent, the hearing of Silver Fern’s substantive application for relief is set down for hearing on 21 February, at which time, as has been acknowledged, any relief will be dependent upon the rental arrears having been paid and the current rent being up to date.
Injunctive relief to be conditional
[42] Mr Hearn submitted that if the Court was prepared to grant interim relief, it ought to be on terms requiring payment of the arrears and instalments until the substantive application is heard in February. This, it was submitted, would be consistent with Silver Fern’s assertion that it would be able to make full payment of the outstanding arrears by that time. Mr Hearn submitted the Court had the power to grant conditional relief under s 256 of the PLA. He referred to the approach taken by Brewer J, in Stylo Medical Services Ltd v Hum Hospitality Ltd, where the tenant was granted a one-month extension to pay arrears, failing which the lease would be cancelled and possession surrendered to the landlord.7 It was argued a similar order would be appropriate should interim relief be granted.
[43] Mr Hearn responsibly drew my attention to another case where Randerson J expressed doubt as to whether this Court has jurisdiction to grant relief on conditions as to payment of future rent in compliance with the terms of a lease.8 However, it was argued that the discretion to grant relief under s 256 was a broad one and that, in the circumstances of the present case, ongoing compliance with the lease over the interim period would provide some assurance that the most fundamental obligation of a tenant—to pay rent—is met in the meantime.
[44] I consider there is merit in Mr Hearn’s submission. Silver Fern is seeking interim relief on the premise it will be in a position to obtain relief at the time of the hearing of its substantive application in February. The arrangements that should govern the parties in the interim fall squarely within the ambit of the Court. Having granted Silver Fern injunctive relief, I consider the Court must have jurisdiction to impose conditions that regulate its terms and which prevents the Trust from exercising its lawful rights until Silver Fern’s substantive application can be heard.
[45] The interim relief that has been granted to the company is implicitly premised on it abiding with its current obligations under the leases, the most fundamental of which is the regular payment of its monthly rental. I am not minded to impose a
7 Stylo Medical Services Ltd v Hum Hospitality Ltd [2020] NZHC 2969.
8 Harlow Finance and Leasing Ltd v Sterling Nominees Ltd, above n 3, at [10].
condition requiring instalment payments of the arrears prior to the February hearing, as appeared to be the initial proposal put forward on behalf of the Trust. However, I consider it is appropriate that a term of the injunctive relief should be a requirement that Silver Fern pay its current rental. If it cannot discharge that fundamental contractual obligation, its substantive application for relief will be entirely redundant. There will therefore be a condition granting interim relief to Silver Fern but on the basis that it pays ithe current monthly rental that becomes due in the period prior to 21 February 2025 in full.
Orders
[46]The following orders are made:
(a)On an interim basis the respondents are prohibited from re-entering the premises or otherwise cancelling the leases that are the subject of this proceeding pending the hearing of the applicant’s substantive application for relief.
(b)The applicant’s substantive application for relief is set down for hearing at the same time as the hearing of the applicant’s originating application to set aside statutory demands in proceeding CIV-2024-409-505 on 21 February 2025, before a Judge of this Court.
(c)The applicant must pay any rent that becomes due under the leases for the months of January and/or February 2025. Any monthly rental for those months that remains unpaid for more than 10 working days will entitle the Trust to cancel the leases and require Silver Fern to surrender possession of the premises to the Trust.
(d)Costs are reserved.
Further directions
[47] As discussed with counsel, directions were made by Associate Judge Lester on 17 October 2024 for the hearing of Silver Fern’s application to set aside the statutory
demands issued by the Trust. A formal notice of opposition to the substantive application for relief and an affidavit in support will need to be filed by the Trust, together with any further evidence the parties may wish to file.
[48] The timetable set by Associate Judge Lester for the filing and service of bundles and submissions appears workable for the hearing of this proceeding. Counsel should liaise with a view to agreeing further timetabling directions regarding the filing and service of the notice of opposition and accompanying affidavit, and any further affidavits required for the hearing on 21 February 2025. That should be recorded in a joint memorandum filed with the Court before the Christmas vacation.
Solicitors:
Neilson Lawyers, Auckland
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