Stanton & Jimcock Limited v Rowling

[2023] NZHC 96

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2022-463-14

[2023] NZHC 96

BETWEEN

STANTON & JIMCOCK LIMITED

Plaintiff/Applicant

AND

WILLIAM ANDREW ROWLING

and
KELLY ROWLING

Defendants/Respondents

Hearing:	13 December 2022
Appearances:	M P Ward-Johnson for the Plaintiff/Applicant Defendants are self-represented
Judgment:	9 February 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application for summary judgment]

This judgment was delivered by me on 9 February 2023 at 3.00pm

pursuant to Rule 11.5 of the High Court Rules

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

Solicitors/Counsel:

Buddle McCleary Kennedy (D Kennedy), Whakatane, for the Plaintiff/Applicant

Ward Johnson barristers Limited (M P Ward-Johnson), Tauranga, for the Plaintiff/Applicant

STANTON & JIMCOCK LIMITED v ROWLING [2023] NZHC 96 [9 February 2023]

Introduction

[1]    The plaintiff, Stanton & Jimcock Limited (SJL), seeks an order for specific performance against the defendants, Mr William Andrew Rowling and Ms Kelly Rowling (Mr and Mrs Rowling), in respect of breach of a deed of settlement and an order for possession of the property and house occupied by Mr and Mrs Rowling at 532 Foster Road, RD1, Taneatua, Whakatane, being land on lot 2 Deposited Plan 562606 being an estate in fee simple with an area of 5,642 square metres on Identifier 998101 (theproperty ).

[2]    SJL also seeks  damages  arising  from  the  breach  and  claims  rental  from 1 November 2020 to the date of judgment, together with interest under the Interest on Money Claims Act 2016, and costs.

[3]    The proceedings were served on Mr and Mrs Rowling on 7 April 2022. The proceedings were first scheduled to be called on 31 May 2022 and were adjourned by consent to allow for settlement negotiations. Mr and Mrs Rowling remain self- represented and have not filed an opposition, affidavit, or defence.

[4]    Settlement negotiations  were  not  successful.  The  matter  was  heard  on  13 December 2022 at the High Court in Rotorua.

Background

[5]    Mr and Mrs Rowling are respectively the son and daughter-in-law of a director of SJL, Mr Thomas Rowling.

[6]    The statement of claim pleads a breach of a settlement agreement in respect of earlier proceedings between the parties where SJL similarly sought a possession order of the property. Mr and Mrs Rowling were then represented by counsel and opposed that interlocutory application for summary judgment.

[7]    The  parties  settled  those  proceedings  by  a  deed  of  settlement  dated     29 September 2020 (the settlement deed) and a deed of variation of the settlement deed dated 11 November 2020 (the varied settlement deed).

[8]The settlement deed provided (inter alia):

1.   Thomas and/or SJL will subdivide the Foster Road properties to create a new title to be known as Lot 4 as detailed on the attached draft survey subdivisional plan marked “A” (Lot 4).

2.   Thomas and/or SJL will file an application for subdivision to create Lot 4 (and/or any application for resource consent and/or any other necessary documents) with Whakatane District Council on execution of this deed.

4.   As part of the subdivision to create Lot 4 Thomas and/or SJL will:

4.1Provide a power connection to the closest boundary between Lot 2 and Lot 4 shown on the subdivisional survey plan attached and marked “A”.

4.2Include a water supply easement for the benefit of Lot 4 to enable the supply of water from the water bore to Lot 4. Once water is supplied William and Kelly will be charged by Thomas and/or SJL for water used by them and/or their invitees to Lot 4 at the water supply rate specified by Whakatane District Council from time to time and on a monthly basis. The water supplied will be sufficient for domestic and domestic stock use.

4.3Provide a new drain for Lot 4 if Whakatane District Council require an additional drain as part of the subdivision approval.

5.   Thomas and/or SJL will meet all of the costs of the subdivision and/or for the resulting identifier/certificate of title to be issued for Lot 4, including the cost of any resource consent conditions.

6.   If Whakatane District Council rejects the application for subdivision filed by Thomas and/or SJL then Thomas agrees to make a payment of

$275,000.00 (net) to William and Kelly (the payment). Thomas and/or SJL will need to sell land to realise the sum of $275,000.00. If this clause is triggered Thomas and/or SJL agree to list for sale sufficient land to realise the sum of $275,000.00 within 15 working days of receiving written notice from Whakatane District Council that the subdivision plan is rejected. Payment of the $275,0000.00 to William and Kelly will be made on settlement of the sale.

7.   In accordance with clauses 7 to 9 below, SJL will transfer the resulting identifier/certificate of title of Lot 4 (the transfer), free of charges and encumbrances (clear title), to William and Kelly and/or their nominee (together the Transferees).

8.   The Transfer shall be completed with Lot 4 having an agreed value of

$275,000.00 excluding GST.

…

14.William and Kelly will receive Lot 4, or the payment, in satisfaction of any current or future claim they may have involving RFL, SJL, RFT or Thomas personally,

15.William and Kelly will vacate and give vacant possession of the house, at 532 Foster Road (house), to Thomas by 31 October 2020. William and Kelly agree that when they vacate the house that it will be in a good and undamaged state (save for fair wear and tear) and that all costs relating to their occupation, up to 31 October 2020, will remain their responsibility and that they will meet those costs.

[9]    The varied settlement deed provided (inter alia):

1.1 William and Kelly will vacate and give vacant possession of the house at 532 Foster Road (house), to Thomas on four (4) weeks’ notice, which notice can be given by either Thomas or William & Kelly. William and Kelly agree that when they vacate the house that it will be in a good and undamaged state (save for fair wear and tear) and that all costs relating to their occupation, up to the date they vacate and give vacant possession, will remain their responsibility and that they will meet those costs. William and Kelly agree to pay rental to Thomas   for   the   house,   with   rental   payments   commencing   1 November 2020, at the sum of $250.00 per week (GST inclusive if any) for the first four (4) weeks and thereafter at the sum of $350.00 per week. The rental will be payable in advance with the first payment to be made on 1 November 2020 and then every seven days thereafter until vacant possession is given by William and Kelly to Thomas on notice as herein.

[10]   SJL completed the subdivision as required under the settlement deed, and the Foster Road properties were subdivided to create the following lots in South Auckland Registry:

(a)Lot 1 on Deposited Plan 562606, being the fee simple title with Identifier 998100 (Lot 1);

(b)Lot 2 on Deposited Plan 562606, being the fee simple title with Identifier 998101 (Lot 2);

(c)Lot 3 on Deposited Plan 562606, being the fee simple title with Identifier 998102 (Lot 3); and

(d)Lot 4 on Deposited Plan 562606, being the fee simple title with Identifier 998103 (Lot 4).

[11]SJL sold Lot 1 and remains the registered proprietor of Lots 2, 3 and 4.

[12]   SJL has not yet transferred Lot 4 to Mr and Mrs Rowling, pursuant to cll 7-9 of the settlement deed.

SJL’s submissions

[13]   Matthew Ward-Johnson, for SJL, submits that on 16 February 2021, SJL gave notice under cl 1.1 of the varied settlement deed, giving Mr and Mrs Rowling four weeks’ notice to vacate the property and the house (the property and house), such notice expiring on 16 March 2021 (the notice).

[14]   By letter dated 29 March 2021, Mr Thomas Rowling repeated the notice and stated:

(a)the subdivision of the Foster Road properties to create Lot 4 would soon be complete;

(b)the power connection and transfer of Lot 4 will not be completed until Mr and Mrs Rowling paid the outstanding rental and vacated the property.

[15]Mr Ward-Johnson submits that Mr and Mrs Rowling:

(a)have only paid the sum of $260.00 in rental and, have not paid the remaining outstanding rental pursuant to cl 1.1 of the varied settlement deed;

(b)have failed or refused to comply with the notice;

(c)continued to occupy the property without SJL’s licence or consent, in breach of cl 1.1 of the varied settlement deed;

(d)have failed or refused to give vacant possession of the property and house to SJL;

(e)are neither tenants nor sub-tenants holding over after the end of the tenancy, have no other legal right to occupy the property and house, and are unlawful occupiers of the property and the house.

[16]   Mr Ward-Johnson submits that SJL is entitled to vacant possession of the property and the house, and Mr and Mrs Rowling have no defence to SJL’s claim.

Legal principles

[17]   Rule 12.2(1)of the High Court Rules 2016 provides that the Court may give judgment against the defendant if the plaintiff has satisfied the Court that the defendant has no defence to the cause of action in a statement of claim or a part of a cause of action.

Law – summary judgment

[18] Mr Ward-Johnson referred the Court to the following summary of relevant law set out at [19].

[19]   The relevant principles governing a summary judgment application are well- established:1

[23]      The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 at 3 (CA). The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 at 341 (PC). In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).

1      Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26].

[24]      The wording of r 12.2 (“may give judgment”) indicates a residual discretion. Having regard to the various authorities, the position appears to be as follows:2

(a)The discretion implied by the use of the word “may” is to be restrictively applied. In a great majority of cases, once the court is satisfied the defendant has no defence, there is no room for the exercise of discretion.

(b)The residual discretion may be invoked to avoid oppression or injustice to the defendant where:

(i)The proceeding involves the actions or possible liability of a third party which is not before the court;

(ii)The proceedings are such that the opportunity should be given to allow discovery or other interlocutory applications to be concluded;

(iii)The circumstances of the case disclose very unusual features, the presence of which leads the court to conclude that the entry of summary judgment would be oppressive or unjust; or

(iv)The combination of complex issues of fact and law justify the dismissal of the application for summary judgment, either as a matter of discretion or because the court cannot be satisfied that the defendant has no defence.

(c)Even where the court is not satisfied that a defence has been made out, in exceptional circumstances the application may be adjourned to allow for other processes to be followed.

Law – specific performance

[20]   Mr Ward-Johnson referred the Court to the following summary of the law set out at [21] and [22].

[21]Burrows, Finn and Todd on The Law of Contract in New Zealand provides:3

It is clear that the exercise of the equitable jurisdiction to grant specific performance or an injunction is a matter within the discretion of the court. In Argyll Stores, Lord Hoffmann contrasted the position in countries with legal systems based on the civil law, where the plaintiff was prima facie entitled to specific performance and the cases where damages alone could be awarded were regarded as the exceptions. But His Lordship thought that in practice

2      Andrew Beck and others (eds) McGechan on Procedure (online ed, Thomson Reuters) at [HR12.2.11].

3      Burrows, Finn and Todd, The Law of Contract in New Zealand (ed 2018 at ch 21.4.2 p 530) (citations omitted).

there was less difference between common law and civilian systems that might be supposed. The principles upon which English judges exercised the discretion were reasonably well settled and depended on a number of considerations, mostly of a practical nature, which were of very general application. Again, in Attorney-General for England and Wales v R, Tipping J emphasised that specific performance and restraint by injunction were not available as of right. But the discretion involved was a judicial discretion and had to be exercised in a principled way.

Factors which bear upon the discretion to award specific performance or injunction, and which the courts will bring into account, include: the question of unfairness in making the contract; whether damages would cause disproportionate hardship to the defendant; whether the contract is for personal services; whether the contract is for the sale of land; whether performance would require supervision by the court; whether the remedy would be available to both parties; and whether there has been a delay in seeking relief. These are all recognised bases by reference to which an order for specific performance may be granted or refused. We will consider these various matters and then turn to the simple question as to the appropriateness of the remedy in the particular circumstances of the case.

[22]   And, at 21.4.2(h), in terms of the appropriateness of the remedy:

(h)Appropriateness of the remedy

The action for breach of contract exists to protect a person’s expectation that a contract will be performed, and arguably that expectation is best met by recognising specific performance as a primary, routine remedy. Indeed, in a number of decisions in New Zealand the notion that common law remedies have primacy over equitable remedies has been called into question. In Butler v Countrywide Finance Ltd, Hammond J referred to these developments and suggested that what was required of a court was a context-specific evaluation of which remedy was most appropriate in the circumstances of a given case. The problem was one of informed remedial choice, exercisable on the basis of the following factors:

(i)Plaintiff autonomy: Generally speaking a plaintiff, being the injured party, should have first choice of remedy.

(ii)Economic efficiency: The debate as to the relative efficiency of common law damages versus equity-based performance remedies was far from conclusive, but on any view the relative efficiencies of possible remedies was a relevant factor.

(iii)The relative severity of the remedy on the parties: Proportionality was a longstanding principle of both moral and legal force.

(iv)The nature of the right being supported by the remedy: In part, the function of the law of civil remedies was that it should be rights enhancing. The stronger the court’s perception of the relevant right, the stronger the remedy which might be required.

(v)The moral view to be attached to the interests at stake: This was an overtly value-laden question, but the argument for candour on the part of the court was overwhelming.

(vi)The effect of a given remedy on a third party (or the public): The older notion that a private lawsuit was entirely one between a plaintiff and a defendant was increasingly becoming outmoded.

(vii)Difficulties of calculation: While the general rule was that difficulty of calculation per se was no bar to compensatory relief, it might be relevant to the choice of remedy. Performance remedies might avoid intractable damages problems.

(viii)The practicability of enforcement: The parties had to live with performance-type decrees, and the court should not be brought into disrepute by having to attempt to enforce the impossible or very difficult. However, it should not be an automatic bar to performance-based relief.

(ix)The conduct of the parties: This had always been one of the great cornerstones of equitable relief.

Law – possession

[23]   Mr Ward-Johnson referred the Court to the following summary of the law relating to orders for possession, set out at [24] to [28].

[24]   The usual way to obtain an order for possession of land against occupiers without right is by summary judgment.4

[25]An unlawful occupier means a person who:

25.1occupies or continues to occupy land of the plaintiff without the licence or consent of the plaintiff or the plaintiff’s predecessor in title; and

25.2is not a tenant or sub-tenant holding over after the determination of a tenancy or sub-tenancy.5

[26]   An alternative to summary judgment is the procedure under part 13 of the High Court Rules.

4      Fox v Fox & Fox [2018] NZHC 1021 at [8].

5 High Court Rules 2016 r 13.2, and affidavit of Thomas Rowling of 8 March 2022 at [10].

[27]   Although part 13 of the High Court Rules provides a different process to summary judgment, Woodhouse J in Sayed Family Limited v Malik & Wilson stated:6

Sayed Family Limited seeks an order for possession of Aranui Road, an order requiring Mr Malik and Ms Wilson to vacate the property. The application is intituled as one under part 13 of the High Court Rules. Part 13 has some relevance, partly in relation to the definition of “unlawful occupier”, but the procedure adopted … [by the] applicant is in fact an application for summary judgment. In consequence, the procedural deficiencies in part 13 do not arise.

[28]   Woodhouse J then referred at footnote 13 to para 45 “see the discussion in Andrew Beck and others, McGechan on Procedure … at [HRPt 13.01] and see r 13.2 which provides that part 13 does not affect an application for summary judgment under part 12 of the Rules.

[29]   Mr Ward-Johnson submitted that despite the “procedural deficiencies” and separate procedure in Part 13 of the Rules, a registered proprietor is not precluded from seeking an order for possession by way of summary judgment against an unlawful occupier, and that the relevant definition of unlawful occupier under Part 13 can still be applied in determining an application for summary judgment in this context. I accept this submission is correct.

Analysis

[30]SJL is entitled to the orders sought for the following reasons:

(a)SJL revoked Mr and Mrs Rowling’s licence to occupy the property and house in the agreed terms of the settlement deed and the varied settlement deed.

(b)Mr and Mrs Rowling’s breach of the varied settlement deed is clear and without any reasonably arguable defence. No defence or opposition has been filed.

(c)SJL is entitled to immediate possession of the property and house and a decree of specific performance is appropriate.

6      Sayed Family Limited v Malik & Wilson [2017] NZHC 1022.

(d)                  SJL is also entitled to damages for unpaid rental in accordance with the terms of the varied settlement deed. As at 16 December 2022, unpaid rental amounted to approximately $38,190.00.

Orders

[31]I make the following orders:

(a)Mr and Mrs Rowling are to comply with the notice issued under cl 1.1 of the varied settlement deed.

(b)Mr and Mrs Rowling are ordered to give immediate possession of the house and property at 532 Foster Road, Whakatane, being the land comprised in record of title Identifier 998101 South Auckland Registry to SJL.

(c)Mr and Mrs Rowling are to make payment to SJL of the outstanding rental amounts for the period from 1 November 2020 to the date they vacate the property and house in accordance with cl 1.1 of the varied settlement deed.

(d)SJL is entitled to interest on the outstanding amount of the rent from the date of this judgment until the date of payment under s 10 of Interest on Money Claims Act 2016.

(e)Costs are awarded in favour of SJL on a 2B basis, to be paid by Mr and Mrs Rowling.

…………………………….. Associate Judge Taylor