IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-002778
[2021] NZHC 1673
BETWEEN WAIKORO LIMITED
Plaintiff
AND
BEACH ARENA LIMITED
First Defendant
AND
SAREN LOO
Second Defendant
AND
CON YUEN LU
Third Defendant
AND
WEI YUEN LOO
Fourth Defendant
AND
GEN YUEN LOO
Fifth Defendant
Hearing: 6 May 2021 (by AVL) Appearances:
D J Chisholm QC and M J W Lenihan for Plaintiff A M Glenie for First Defendant
Judgment:
6 July 2021
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 6 July 2021 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
WAIKORO LTD v BEACH ARENA LTD [2021] NZHC 1673 [6 July 2021]
[1] The plaintiff, Waikoro Ltd (Waikoro) is seeking to recover sums it says are owed to it by the first defendant, Beach Arena Ltd (BAL), under a deed of lease of premises at Auckland (the lease). Waikoro also seeks to recover from the second to fifth defendants (collectively “the guarantors”) under a limited guarantee of the obligations of BAL.
[2] Waikoro and BAL allege the other is abusing the court’s processes; that is, BAL argues Waikoro’s claim and Waikoro argues BAL’s defences and counterclaims are abuses of the court’s processes.
[3]This judgment concerns applications:
(a)by BAL for an order striking out or staying Waikoro’s claim as an abuse of process;
(b)by Waikoro for an order striking out 20 paragraphs of BAL’s amended statement of defence and counterclaim as an abuse of process or, alternatively, because the matters raised by way of defence and counterclaim are time barred; and
(c)by Waikoro for an order BAL pay security for costs in respect of its counterclaims.
[4]The guarantors have taken no part in these matters.
Background
[5] The applications fall to be considered against the backdrop of other litigation Waimauri Ltd v Mahon.1 The relevant factual background is as stated below but can be found in greater detail in the judgment of Muir J in that proceeding.
[6] The leading protagonists in this proceeding and Waimauri Ltd v Mahon are Neville Christopher Mahon and Timothy Laird Edney. Mr Mahon is the sole director
of BAL. Mr Edney is the sole director of Waikoro and of Waimauri Ltd (Waimauri). Mr Mahon and Mr Edney have known each other for over thirty years. Although once on good terms, they have fallen out bitterly resulting in litigation between them and their related entities.
[7] Waikoro owned properties at 131 Beach Road and 128 Anzac Avenue, Auckland (the property). On or about 20 December 2012, Waikoro and BAL entered into the lease of the property. The guarantors provided limited guarantees of BAL’s obligations under the lease.
[8] Under the lease, BAL took on maintenance obligations and the property was in need of repairs. In addition, shortly after the commencement of the lease, BAL was presented with a large and unexpected insurance bill.…
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- [2021] NZHC 1673
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