Twaddle v M a Building Trade Holdings Limited

[2025] NZHC 1142

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2025-404-918

[2025] NZHC 1142

BETWEEN

ALISON JAN TWADDLE and JUDITH

MARY DOWNEY as trustees of the Carnell Twaddle Trust

Applicants

AND

M A BUILDING TRADE HOLDINGS LIMITED

First Respondents

MARK JOSEPH ANTONIO AH VUI

Second Respondent

Hearing:

12 May 2025

Appearances:

D E Archibald for the Applicants

No appearance for or on behalf of the Respondents

Judgment:

15 May 2025

JUDGMENT OF HARVEY J

This judgment is delivered by me on 15 May 2025 at 12pm pursuant to r 11.5 of the High Court Rules

………………………………

Deputy Registrar

Counsel:

Andrew Grant, Barrister, Auckland (D E Archibald)

Solicitor:
The Property Law Centre, Auckland

TWADDLE v M A BUILDING TRADE HOLDINGS LIMITED & VUI [2025] NZHC 1142 [15 May 2025]

Introduction

[1]                  On 7 October 2022, the Carnell Twaddle Trust agreed to lease its premises at Unit C, 2 Princes Street, Onehunga, Auckland to M A Building Trade Holdings Ltd (MABTH). Mr Mark Ah Vui, the director of MABTH, also signed the Deed of Lease in his individual capacity as the guarantor. The annual rent and outgoings amounted to $36,421 plus GST.

[2]                  The applicants claim that since 20 October 2024 MABTH has failed to make payments as they fell due. As at 8 May 2025, the total arrears was $15,030 including GST. Despite attempts to contact Mr Ah Vui, the applicants submitted that no explanation nor complete payment has been forthcoming.

[3]                  On 17 March 2025, per ss 245 and 246 of the Property Law Act 2007, the applicants served a notice of intention to cancel the lease on the respondents. The respondents had 10 working days after the date of service to remedy the breaches. According to the applicants, the respondents have failed to do so and continue to fail to make payment of the rental.

[4]                  By application dated 9 April 2025, and a supporting affidavit affirmed by  Mrs Twaddle, the applicants seek orders cancelling the lease, granting them possession and ordering the respondents pay the rent and outgoings to the date of cancellation of the lease or such later date as the respondents yield possession.1

[5]                  As compensation for the breaches, the applicants seek their reasonable expenses and legal costs (as per cl 6.1 of the lease) and interest on outstanding rent and outgoings at the default rate of 14 per cent per annum (as per cl 5.1 of the lease) from the due date to the date of payment.

Discussion

[6]                  This is essentially a tenancy dispute in which the first respondent has failed to pay the rent due under the lease to the applicants. As foreshadowed, to date the

1      The application was served on the first respondent on 1 May 2025 and on the second respondent on 6 May 2025, as confirmed by the affidavits of service.

respondents have not engaged in the proceedings despite having been served. Overall, while I raised with counsel the possibility of a formal proof hearing, on reflection, I consider that the approach taken by Gault J in James Ward Trustee Co Ltd v Jarm2 and Radich J in Hope Resources Trust Board v Cole3 is appropriate. In other words, this matter can be dealt with as a formal proof on the papers without the need for a hearing.

[7]                  Given the respondents’ failure to remedy the defaults in payment of rent following notice, I am satisfied that the applicant is entitled to cancel the lease under s 245(1) of the Property Law Act 2007 and is entitled to an order for possession of the premises.

[8]                  I also accept that that the applicant is entitled to damages for unpaid rent and outgoings payable under the lease until the date of cancellation or (if later) the date possession is yielded. The applicant is entitled to its legal costs and disbursements relating to the default and enforcement, as well as interest at the default rate.

Decision

[9]                  Orders are now issued, per ss 244, 245 and 251 of the Property Law Act 2007, that the lease dated 7 October 2022 between the applicants and the respondents for Unit C, 2 Princes Street, Onehunga, Auckland is cancelled and that the applicants are entitled to immediate possession of the premises.

[10]The respondents must pay the applicants:

(i)      rent and outgoings of $15,030 including GST as at 8 May 2025;

(ii)    solicitor-client costs per cl 6.1 of the lease, totalling $5,653.57 as at 8 May 2025;

(iii)     the trust’s reasonable expenses incurred in connection with enforcing the terms of the lease (including filing fees and the cost of service) totalling

$1,315.40 as at 8 May 2025; and

2     James Ward Trustee Co Ltd v Jarm [2025] NZHC 937.

3   Hope Resources Trust Board v Cole [2025] NZHC 1093.

(iv)     interest per cl 5.1 of the lease from the date of judgment until repayment, totalling $388.62 as at 8 May 2025.

Harvey J