Waikato District Council v Singh - [2015] NZHC 2233

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-348 [2015] NZHC 2233

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: 24, 25, 26 August 2015

Appearances:

P Moodley for Applicant
D J Taylor for Respondents

Judgment:

16 September 2015

JUDGMENT OF WHATA J

This judgment was delivered by me on 16 September 2015 at 4:00pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Brookfields, Auckland
Kellaways, Hamilton

Counsel: D J Taylor, Hamilton

WAIKATO DISTRICT COUNCIL v SINGH [2015] NZHC 2233 [16 September 2015]

Introduction

[1] The Waikato District Council (the Council) applies for an order of possession of land, cancellation of lease and payment of all moneys due under the lease in respect of the land at Waingaro Hot Springs, Waingaro. The land is leased by the respondents, Chuhar Singh and Amro Singh.

[2] The Council claims that the Singhs have defaulted on covenants as to maintenance, repair and use of land. The Singhs oppose the orders sought. The Singhs also apply for relief from cancellation.

[3] Helpfully the parties agreed in closing the issues that must be resolved namely:

(a) Was there at the time of the issue of the Property Law Act 2007 (PLA)

notice a breach of any of clauses 6.1, 6.2 and 7.3 of the lease?

(b)Whether the reference to arbitration in the lease clause 12.4 means that the parties are bound to refer the dispute to arbitration.

(c) Whether the PLA notice adequately informed the respondents of the nature and extent of the breach complained about.

(d)If the notice was adequate, has a “period that is reasonable in the circumstances” expired at any of the following times:

(i) The period specified in the notice;

(ii)The date the application for an order for possession of the land comprised in the lease was made to the court; or

(iii) At the time when the order is made.

(e) What breaches (if any) are still extant at the time of the hearing?

(f) Was there a waiver by the applicant of the claim to possession of the hot pools by the acceptance of rent following the meeting of the 5th of September 2014?

(g)If there are breaches which have not been remedied at the time of the hearing, are they sufficiently material to justify the making of an order for cancellation?

(h)Whether if cancellation is available, the respondents should be granted relief from cancellation.

(i)If the court determines that the respondents should be granted the discretionary remedy of relief against cancellation or proposed cancellation what, if any, terms should be imposed?

Background

The lease

[4] Mr and Mrs Singh operate a geothermal pool complex known as the Waingaro Hot Springs on land leased from the Council. The complex is operated as a hot pool comprising a camp ground, geothermally heated swimming pools, spa pools,…

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 2233
Decision Date: 16 September 2015

CaseChat Overview and Summary

The Waikato District Council sought an order for possession of land under s 244 of the Property Law Act 2007, cancellation of lease and payment of all moneys due under the lease in respect of land leased to the respondents, Chuhar Singh and Amro Singh. The land was used as a geothermal pool complex known as the Waingaro Hot Springs. The Council claimed that the Singhs defaulted on covenants as to maintenance, repair and use of land. The Singhs opposed the orders sought and applied for relief from cancellation. The court was required to determine whether the Council’s notice of cancellation was adequate and if a reasonable period had elapsed since the notice was issued, whether the breaches were still extant at the time of the hearing, whether the Council waived its right to possession by accepting rent after the notice of cancellation, whether the breaches were sufficiently material to justify the making of an order for cancellation and if relief from cancellation should be granted to the respondents. The court found that there were breaches of clauses 6.1, 6.2 and 7.3 of the lease, but the notice period was inadequate. A reasonable period had elapsed since the notice was issued and the breaches were still extant at the time of the hearing. The court found that the Council did not waive its right to possession by accepting rent after the notice of cancellation. However, the court found that cancellation would be entirely disproportionate to the breaches and granted relief from cancellation subject to conditions, including that the Singhs complete all the requisite physical works within 60 working days of obtaining any required building consent and approve a pool operational plan that conforms to the NZS5826:2010 standard prior to the reopening of the facility to the public.

The final orders were that the application for relief from cancellation was granted subject to the conditions specified in the judgment and submissions on costs may be filed if necessary, no longer than three pages.

Orders