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Turrall v Jackson

Turrall v Jackson

Case [2018] NZHC 2370 10 September 2018

Contract Formation

Breach of Contract

Unjust Enrichment

Repudiation & Termination

Specific Performance

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-0857

[2018] NZHC 2370

BETWEEN JOHN GRAHAM TURRALL and BUTLER TRUSTEES (2014) LIMITED
Plaintiffs

AND

BRYAN LEE JACKSON

First Defendant

KAREN LETICA
Second Defendant

/cont…

Hearing: 21 June 2018

Counsel:

A R Gilchrist for the Plaintiffs

R J Hollyman and A Peat for the First and Second Defendants A J Steel for the Third and Fourth Defendants

G E Schumacher for the Fifth and Sixth Defendants

Judgment:

10 September 2018

Reissued:

26 September 2018

CORRECTED AND RE-ISSUED JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 26 September 2018 at 2.00pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:
J G Turrall, Auckland / A R Gilchrist, Auckland
D J Spencer, Auckland / R J Hollyman, Auckland and A Peat, Auckland P Friedlander, Auckland / A J Steel, Auckland
Duncan King Law, Auckland / G E Schumacher, Auckland

TURRALL v JACKSON [2018] NZHC 2370 [10 September 2018]

MAEGAN JANE FOX
Third Defendant

DONALD ANDREW FOX
Fourth Defendant

GRAHAM DAVID MILLIER
Fifth Defendant

JANET ELIZABETH MILLIER
Sixth Defendant

BRIAN GRAHAM BLUETT and TODD GRAHAM BRUCE BLUETT

Third Parties

JUDGMENT RECALLED AND RE-ISSUED TO CORRECT OMISSION IN PARAGRAPH (1) OF THE RESULT SECTION, BY ADDING AWARD OF INTEREST TO 3 FEBRUARY 2016 IN ACCORDANCE WITH PARAGRAPH [165]

[1] The plaintiffs (the trustees) are the trustees of a trust known as The Flo-ter Trust (the Trust). They apply for summary judgment for rent, outgoings and interest said to be owing under a registered lease (the Lease) of a motel property at 384 Ellerslie-Panmure Highway, Auckland (the property).

[2] The first to fourth defendants are former lessees of the property who took assignments of the Lease from earlier lessees or assignees. They operated the motel business at the property in the period June 1997 to September 2007, the first and second defendants (Mr Jackson and Ms Letica) between June 1997 and June 2004, and the third and fourth defendants (Mr and Mrs Fox) between June 2004 and September 2007. The third defendant, Maegan Fox, is the daughter of Ms Letica. The fourth defendant is Maegan Fox's husband.

[3] The fifth and sixth defendants (the Milliers) owned a company called Ellerslie Highway Motel Ltd (EHM). EHM held the Lease of the property before it was assigned to Mr Jackson and Ms Letica.

[4] In the period from September 2007 to early 2016 the Lease was held by Brian Bluett and Todd Bluett (the Bluetts). Substantial arrears of rent and outgoings accumulated in this period, and eventually the then-trustees issued a proceeding in this Court (the Bluett proceeding) for recovery of the arrears and interest, and for an order cancelling the Lease.

[5] In a judgment given on 3 February 2016 in the Bluett proceeding, Toogood J made a number of orders in favour of the Trust. First, an order was made granting the Trust possession of the property.…

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.

Continue reading Turrall v Jackson

Details

AGLC: Turrall v Jackson [2018] NZHC 2370
Case: [2018] NZHC 2370
Decision Date: 10 September 2018

CaseChat Overview and Summary

The case of Turrall v Jackson [2018] NZHC 2370 involved the trustees of The Flo-ter Trust, seeking summary judgment against former lessees and guarantors for unpaid rent and other amounts owed under a lease of a motel property. The court considered arguments from the former lessees and guarantors that they had no arguable defence to the Trust's claims. The court found that the former lessees were liable under their deeds of covenant to pay the rent and other outgoings payable under the lease, and that the Trust was entitled to recover the unpaid rent and interest from them. However, the court dismissed the application against the guarantors on the basis that the Trust had not complied with the notice requirements of the guarantee before enforcing it against the guarantors. The court concluded that the Trust was not entitled to summary judgment against the guarantors and that their application would be dismissed. Costs on the guarantors' application were reserved.

Orders