Waikato District Council v Singh - [2015] NZHC 3147

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-348 [2015] NZHC 3147

IN THE MATTER
of an application for an order for

possession of land under s 244 of the
Property Law Act 2007

BETWEEN

WAIKATO DISTRICT COUNCIL Applicant

AND

CHUHAR SINGH AND AMRO SINGH Respondents

Hearing: On the Papers

Appearances:

P Moodley for Applicant
D J Taylor for Respondents

Judgment:

10 December 2015

JUDGMENT (No.2) OF WHATA J

This judgment was delivered by Justice Whata on
10 December 2015 at 3.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Brookfields, Auckland
Kellaways, Hamilton
Counsel:
D J Taylor, Hamilton

WAIKATO DISTRICT COUNCIL v SINGH [2015] NZHC 3147 [10 December 2015]

Relief from cancellation orders

[1] In my judgment of 16 September 20151 I granted relief from cancellation subject to the following conditions:

(a) The Singhs shall have completed all the requisite physical works within 60 working days of obtaining any required building consent.

(b)The Singhs shall have approved by Mr Graham or other suitably qualified expert, a pool operational plan that conforms to the NZS
5826:2010 standard prior to the reopening of the facility to the public.

(c) In the meantime, the Singhs must continue to pay rental and all other outgoings under the lease and to comply with all obligations as tenant under the lease.

[2] I reserved leave to the parties to provide submissions on the precise wording of the proposed conditions within five working days.

[3] In response to my directions, I received detailed memoranda including updating the Court as to the position reached some months after my judgment. I issued a minute reminding the parties of the limited scope for which I granted leave to make submissions, namely on the precise wording of the orders as set out at paragraph [63].

[4] I have now received what I directed the parties to provide, namely a draft form of the orders.

[5] There was one point of disagreement. The applicant requested that a condition 3 be inserted as follows:

3. The pools are not to be reopened until: (a) the physical works are completed;
(b) both plans are duly approved;

1 Waikato District Council v Singh [2015] NZHC 2233.

(c) with such completion and approval to be confirmed by the experts who signed the joint statement dated 21 August 2015; and

(d) the respondents apply for Pool Safe accreditation.

[6] I accept the objective of the proposed condition, but I am concerned that the requirement for expert consensus runs the risk of undue delay. I therefore grant leave of the parties to seek the assistance of the Court if expert approval cannot be obtained within 30 days of the request to provide that approval.

[7] Accordingly, I make a final order in terms of Annexure A.

Costs

[8] Ordinarily in cases where relief against cancellation has been granted, a costs award is made against the party obtaining the indulgence.2 I do not propose to depart from this orthodoxy save…

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: [2015] NZHC 3147
Decision Date: 10 December 2015

CaseChat Overview and Summary

In Waikato District Council v Singh, the Waikato District Council sought an order for possession of land under section 244 of the Property Law Act 2007. The respondents, Chuhar and Amro Singh, were the tenants of the Waingaro Hot Springs facility. The Council argued that the Singhs had breached the lease agreement by not completing the necessary physical works and failing to submit compliant risk management and water quality plans. The Singhs sought relief from cancellation of the lease. The court was required to determine whether relief from cancellation was appropriate and, if so, what conditions should be imposed.

The court found that relief from cancellation was an appropriate remedy given the circumstances. The Singhs had been in breach of the lease for an extended period, but they had taken steps towards compliance and had made significant progress. The court accepted that the Singhs had a genuine intention to comply with the lease terms and had made efforts to address the issues. However, the court was concerned that without specific conditions, the Singhs might not complete the necessary works and obtain the required approvals in a timely manner. The court imposed several conditions for relief from cancellation, including the completion of specified physical works, the approval of risk management and water quality plans by a suitably qualified expert, and the requirement for the Singhs to apply for Pool Safe accreditation. The court also allowed the parties to seek the assistance of the court if the experts were unable to provide approval within 30 days.

The court concluded that relief from cancellation should be granted subject to these conditions. The court also considered the costs of the proceedings and decided to discount the costs in favour of the Council by 25 percent to reflect the Council's undue pedantry in the remedial process. The court made a final order in terms of the agreed conditions, and the Singhs were granted relief from cancellation on the specified terms.

Orders