Wang v MA

[2019] NZHC 1821

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2018-412-91

[2019] NZHC 1821

UNDER

Section 244 of the Property Law Act 2007

BETWEEN

CELTIC SOUTH LIMITED

Applicant

AND

ARROWSTONE CONTRACT CELLARING LIMITED

First Respondent

AND

PETER WILLIAM ROBBIE

Second Respondent

AND

WINE STORAGE SOLUTIONS (2013) LIMITED

Third Respondent (now joined)

Hearing:

Determined on the Papers

Counsel:

S M Chadwick for the Applicant

G Clarke for the First and Second Respondents and the Third Respondent now joined

Judgment:

30 July 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Judgment by consent)

This judgment was delivered by me on 30 July 2019 at 3.30pm pursuant to rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 30 July 2019

CELTIC SOUTH LTD v ARROWSTONE CONTRACT CELLARING LTD [2019] NZHC 1821 [30 July 2019].

[1]                 The parties have reached a settlement in respect of these proceedings commenced by the applicant landlord, which sought orders of possession of a property at 12 Pinot Noir Drive, Cromwell (“the property”). The application was opposed by the first and second respondents, who also applied for relief against cancellation of the lease.

[2]                 As part of the settlement reached, the parties seek that the present occupant of the property, Wine Storage Solutions (2013) Ltd (“Wine Storage”) be added as a party to this proceeding so that it can be made subject to the orders that the parties seek by consent.

[3]                 Wine Storage is now the occupant of the property. The parties have executed a deed of assignment of lease to Wine Storage. Accordingly, Wine Storage needs to be a party to these proceedings in order that the contingent relief against cancellation the parties have agreed will bind it.

[4]                 Given that Wine Storage consents to be joined to these proceedings and that such is necessary to give effect to the resolution reached by all parties, there is an order that it be joined as third respondent.

[5]                 Under s 256 of the Property Law Act 2007 (“the Act”), in granting relief against the cancellation of a lease, the Court may grant relief subject to conditions, including conditions relating to “expenses, damages, compensation, or any other relevant matters that it thinks fit”. The Court is also empowered to make an injunction restraining any similar breach of the lease in the future.

[6]                 The parties, having reached agreement as to the granting of relief against cancellation upon conditions, seek by consent that those orders be made.

[7]                 Counsel have referred to Grant v Hannay as an example of where the Court has made orders similar to those sought in the present proceeding.1

[8]                 The orders sought reflect the respondents’ position that they have now put their affairs in order and that they wish to regularise the situation with the lease. The applicant lessor is prepared to accommodate that request provided there are orders that protect it in the future.

[9]                 Accordingly, by consent, there is the order joining Wine Storage as third respondent.

[10]              There are orders in terms of para 4.2 of the application for consent orders (dated 16 July 2019), save that:

(a)the  reference  in  para  4.2(b)  to   “and  any  subsequent  assignees   or subtenants of the Third Respondent” be deleted; and

(b)the  reference  in  para  4.2(c)  to  “and  any  subsequent  assignees   or successor of the Second Respondent” be deleted

on the grounds that the parties cannot by consent obtain orders that bind non-parties, that is future assignees or subtenants.

[11]              Subsequent assignees or subtenants of the third respondent and subsequent assignees or successors of the second respondent can bind themselves contractually (subject to s 243(3) of the Act) to terms that reflect the terms of the consent order, but I am not willing, nor do I consider I am able, to make an order that purports to bind subsequent tenants or guarantors by virtue of conditions attaching to orders made in this proceeding.

1      Grant v Hannay (2010) 11 NZCPR 283.

[12]              Subject to those amendments, there are orders in terms of para 4 of the consent application and I again note in that regard that the orders sought in general follow the form of orders that were granted by the Court in Grant v Hannay.

Associate Judge Lester

Solicitors:

Webb Farry, Dunedin

Checketts McKay Law limited, Alexandra