SPAK (1996) Ltd v LeRoy - [2021] NZHC 2398

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1483

[2021] NZHC 2398

BETWEEN
SPAK (1996) LIMITED

Plaintiff

AND

REECE LEROY

Defendant

BODY CORPORATE 407404

Third Party

Hearing: 10 August 2021

Appearances:

Edwin Boshier for the Plaintiff

Edwin Morrison and Cameron Fraser for the Defendant J Zhang for the Third Party

Judgment:

14 September 2021

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 14 September 2020 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

………………………….
Registrar/Deputy Registrar

Solicitors:
Duncan Cotterill (E Boshier/R Coltman), Auckland, for the Plaintiff K3 Legal Ltd (E Morrison/C Fraser), Auckland, for the Defendant
Wotton & Kearney Ltd (M Lucas/K Bates/J Zhang), Auckland for the Third Party

SPAK (1996) LIMITED v REECE LEROY [2021] NZHC 2398 [14 September 2021]

[1] In June 2020 the Stamford Plaza Hotel in Albert Street, Auckland, became a managed isolation facility during the COVID-19 pandemic. It took in travellers arriving from overseas who stayed in the hotel in isolation for two weeks, until they were tested for the virus and cleared to leave. One aspect the hotel had to deal with is that it is not the only occupier of its building. The upper floors are private apartments owned in unit titles under the Unit Titles Act 2010. Those living in the apartments have rights of access over parts of the hotel. Their rights of access had to be preserved, while keeping hotel guests in isolation. That required working out arrangements with the body corporate. It had a building manager, Mr LeRoy, the defendant. Unfortunately the hotel had a grudge against Mr LeRoy. It did not like the way that he went about looking after the interests of the body corporate and its residents. It says that he went onto the hotel premises when he ought not to have. It has sued him in trespass to land and has obtained an interim injunction to stop him trespassing.

[2]I heard four applications:

(a)The hotel seeks an order that Mr LeRoy be held in contempt for breaching the interim injunction.

(b)The hotel seeks an unless order debarring Mr LeRoy from defending the proceeding.

(c)Mr LeRoy applies for summary judgment.

(d)Mr LeRoy applies for the plaintiff’s claim to be struck out as an abuse of process, frivolous and vexatious.

[3] Mr LeRoy succeeds on his applications. He did not trespass because he had rights of passage over parts of the hotel subject to registered easements in favour of the body corporate. The hotel could not bar him by declaring him a trespasser. The hotel says that it is seeking a vindication of its property rights, but that does not stand up. The matter is trivial and should not have been brought in this court. The easements have sensible alternative dispute resolution provisions, which the hotel should have

used if its concerns were genuine. The hotel however wanted Mr LeRoy removed as the body corporate building manager and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 2398
Decision Date: 14 September 2021

CaseChat Overview and Summary

SPAK (1996) Limited, a hotel operator, brought a claim for trespass against its building manager, Reece LeRoy. LeRoy was the building manager for the body corporate of the upper floors of the hotel building, which were owned under the Unit Titles Act 2010. The hotel and the body corporate had easements over each other's property, including a right of way. The hotel alleged that LeRoy had trespassed on three occasions, twice in July 2020 and once in June 2020. LeRoy applied for summary judgment and for the statement of claim to be struck out as an abuse of process, frivolous and vexatious. The hotel applied for an order that LeRoy be held in contempt for breaching an interim injunction and for an unless order barring LeRoy from defending the proceeding. LeRoy succeeded on his applications. The court held that LeRoy was not trespassing as he had rights of passage over parts of the hotel subject to registered easements in favour of the body corporate. The easements had alternative dispute resolution provisions, which the hotel should have used if its concerns were genuine. The hotel wanted LeRoy removed as the body corporate building manager and it used this proceeding as one way to bring that about. Its case was an abuse of process. The contempt application was outside the jurisdiction of an associate judge. The application for an unless order is now resolved, barring a question of costs. That can be addressed at the same time as the contempt application. The hotel's claim against LeRoy was dismissed. LeRoy has costs against the hotel on his applications. The Registrar is to set down the hotel's contempt application for a half day before a Justice. Costs on the unless application will be decided at the same time. Leave is reserved to LeRoy to apply to enforce the hotel's undertaking as to costs.

Orders