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.

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: [2023] NZHC 96
Decision Date: 9 February 2023

CaseChat Overview and Summary

Stanton & Jimcock Limited brought proceedings against William Andrew Rowling and Kelly Rowling, seeking specific performance of a settlement deed, damages for breach, rental arrears, and costs. The defendants, self-represented, did not file an opposition, affidavit, or defence. The court considered the application for summary judgment and the appropriate remedy for the defendants' breach of the settlement deed. The settlement deed required the defendants to vacate the property by a specified date, which they failed to do. The court found the defendants in clear and indefensible breach of the varied settlement deed. Given the defendants' failure to respond to the application and their unlawful occupation of the property, the court found that Stanton & Jimcock Limited was entitled to immediate possession of the property and house, and a decree of specific performance was appropriate. The court also found that Stanton & Jimcock Limited was entitled to damages for unpaid rental in accordance with the terms of the varied settlement deed. The court ordered the defendants to vacate the property and house, pay outstanding rental amounts, and pay interest on the outstanding rent. Costs were awarded to Stanton & Jimcock Limited on a 2B basis.

Orders