Ward v Lochore - [2019] NZHC 1314

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-278

[2019] NZHC 1314

BETWEEN
RUSSELL STUART WARD

Plaintiff

AND

ANGUS JAMES LOCHORE

Defendant

Hearing: 4 March 2019

Counsel:

Plaintiff in person (with McKenzie Friend) W C Pyke for Defendant/Applicant

Judgment:

12 June 2019

JUDGMENT OF KATZ J

This judgment was delivered by me on 12 June 2019 at 11:00 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Bryce Bluett (Hamilton) for Defendant Copy to: Plaintiff in person

WARD v LOCHORE [2019] NZHC 1314 [12 June 2019]

Introduction

[1] Russell Ward has filed proceedings against Angus Lochore arising out of the termination of Mr Ward’s lease of commercial premises in Frankton, Hamilton. Mr Lochore says that each of the four causes of action pleaded against him is untenable. He accordingly applies to strike out or stay the entirety of Mr Ward’s claim. If that application is unsuccessful Mr Lochore applies, in the alternative, for security for costs and a transfer of the proceeding to the District Court.

Background

[2] Mr Ward leased a unit (Unit 9) in commercial premises in Frankton, Hamilton from Galbraith Holdings Trust (“Galbraith”). His lease expired on 31 March 2017 and, from that time onwards, he continued in occupation on a monthly tenancy.

[3]On 18 April 2018 Galbraith sent Mr Ward an email stating that:

DEAR TENANT: As you are aware things have been in the pipeline – now its time as its come to fruition, to advise the rent of units is to expire 31 may – (the new tenant of the yard said he will try and help you if your “stuck” but the plan is for no outsiders on site.

[4] Mr Ward does not accept that this email constituted valid written notice of the termination of his tenancy.

[5] The new tenant for the entirety of the site, including Unit 9, was Altranz (2008) Ltd (“Altranz”). Altranz has leased the premises for the period 1 June 2018 to 18 March 2020. Altranz’s lease agreement provides for vacant possession as at the commencement of its tenancy.

[6] Mr Ward pleads in his statement of claim that Mr Lochore (Altranz’s sole director) told him, prior to 1 June 2018, that “nothing would change in terms of [Mr Ward’s] tenancy until Christmas 2018” and that “there was ‘no pressure’ on [Mr Ward] to leave”. (Mr Lochore denies having said this, but I will assume for present purposes that he did).

[7] When Altranz took occupation of the premises, Mr Ward alleges Mr Lochore “changed his mind” and demanded that he leave forthwith. Mr Ward, however, believed he was entitled to at least one month’s notice under his lease with Galbraith.

[8] Tensions between the two men escalated, culminating in the locks to Unit 9 being changed on 3 July 2018. Altranz (through Mr Lochore) then requested Mr Ward to remove all of his machinery and belongings from Unit 9. He did not do so within…

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.

Continue reading Ward v Lochore

Details

AGLC: Ward v Lochore [2019] NZHC 1314
Case: [2019] NZHC 1314
Decision Date: 12 June 2019

CaseChat Overview and Summary

The case of Ward v Lochore concerns a dispute between Russell Ward and Angus Lochore, the latter being the sole director of Altranz (2008) Ltd, a company that leased commercial premises in Hamilton, New Zealand. Ward, who had been leasing a unit in the premises from Galbraith Holdings Trust, alleged that Lochore terminated his lease unlawfully and caused damage to his property. Lochore applied to strike out or stay Ward’s claim, arguing that it disclosed no tenable cause of action. The court had to determine whether Ward’s statement of claim disclosed a tenable cause of action against Lochore, and whether it should be struck out, stayed, or if alternative remedies such as security for costs or a transfer to the District Court were appropriate.

The court found that Ward's claims were untenable for several reasons. Firstly, the claim for "general damage" was not a valid cause of action as damages are a remedy, not a cause of action. Secondly, Ward’s claims for breach of his lease agreement with Galbraith were untenable because neither Lochore nor Altranz were parties to that agreement. Thirdly, the claims under the Property Law Act were also untenable because Ward’s lease was with Galbraith, not Lochore or Altranz. Finally, the claims under the Crimes Act 1961 were not viable as they did not give rise to a civil cause of action.

The court concluded that all causes of action against Lochore were untenable and struck out the statement of claim. The court also awarded costs and disbursements to Lochore on a 2B scale basis.

This decision highlights the importance of correctly identifying the parties to a legal claim and ensuring that the appropriate remedies and causes of action are pursued against the correct parties. It also underscores the principle that directors of companies are not personally liable for the acts of the companies they direct, absent specific circumstances that were not present in this case.

Orders