Ward v Lochore
[2019] NZHC 1314
•12 June 2019
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 a time frame satisfactory to Altranz and, as a result, Altranz employees or contractors packed all of Mr Ward’s property into two shipping containers.
[9] A dispute then arose between the parties as to who was responsible for the costs of this exercise. Ultimately, however, the containers were delivered to Mr Ward at his new premises. He unpacked them, and the empty containers were then uplifted.
[10] Mr Ward claims that when he unpacked the containers he discovered that many of his belongings were damaged. He alleges that this was due to a lack of care being taken when the containers were packed, and excessive humidity within the container itself. Further, Mr Ward claims that a .22 rifle and a shotgun he had stored at Unit 9 have gone missing. He believes they have been stolen by Altranz’s employees or contractors.
Mr Ward’s statement of claim
[11] Mr Ward is self-represented in this proceeding. His statement of claim commences with a fairly lengthy (11-pages) and broadly chronological narration of events, from his perspective. Various assertions are made about Mr Lochore’s behaviour which Mr Pyke (counsel for Mr Lochore) described as “hyperbolic and scandalous” but which Mr Ward believes to be entirely justified. It is not necessary to traverse the detail, however. I have summarised the key facts for present purposes at [2] to [10] above.
[12] After setting out his factual narrative, Mr Ward pleads four causes of action. The first three are described (in their entirety) as follows:
General damage.
78.[Mr Ward] believes [Mr Lochore] has caused intentional damage to [Mr Ward’s] property out of pure spite and has demonstrated totally unreasonable and irrational behaviour.
Lease Agreement.
79.[Mr Lochore] has violated Section 13 of the lease agreement by not giving [Mr Ward] a months notice.
80.[Mr Lochore] has violated Section 14 of the lease agreement by not giving a termination of lease notice in writing.
81.[Mr Lochore] has violated Section 18, Right of quiet enjoyment, by interfering with [Mr Ward] and walking in without permissions.
Property Law Act.
82.[Mr Lochore] has violated Sections of the Property Law Act by not giving [Mr Ward] Notice in writing.
83.[Mr Lochore] has violated Sections of the Property Law Act by seizing [Mr Ward’s] goods.
84.[Mr Lochore] has violated Sections of the Property Law Act by not getting a Court Order to evict [Mr Ward], and has evicted [Mr Ward] illegally.
85.[Mr Lochore] has violated Sections of the Property Law Act by changing locks without [Mr Ward’s] permission.
[13] The fourth cause of action purports to be under the Crimes Act 1961. Specifically, Mr Lochore is said to have committed various criminal offences including burglary, robbery, common assault, obtaining by deception and criminal harassment.
[14] Damages are sought in the sum of $239,720.00. The damages claim includes various heads of damage including Mr Ward’s time spent in unpacking the containers, damage to his property, loss of six months’ earning (at $9,000 per month), loss of credibility in the market place ($20,000) and damages for pain and suffering and “Tort of mind” in respect of the “Lease and Property Law Act violations”. Leave to pursue additional relief is sought, along with “specific performance with punitive damages”.
Should the proceeding be struck out?
[15] Mr Lochore applies to strike out or stay the statement of claim in its entirety, on the basis that no tenable cause of action against him is disclosed.
Relevant legal principles
[16]Rule 15.1 of the High Court Rules 2016 provides as follows:
Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
(2)If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3)Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.
(4)This rule does not affect the court’s inherent jurisdiction.
[17] The principles that apply to strike out applications are well-established. In particular:1
(a)A striking-out application proceeds on the basis that the facts pleaded in the statement of claim are true, whether or not they are admitted.
1 Attorney General v Prince [1998] 1 NZLR 262 (CA) at 267, endorsed by the Supreme Court in Couch v Attorney General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ and Anderson J.
This does not extend to pleaded allegations which are entirely speculative and without foundation.
(b)The cause of action or defence must be clearly untenable.2
(c)The jurisdiction is to be exercised sparingly, and only in clear cases where the Court is satisfied it has the requisite material.
(d)The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.
(e)The Court should be particularly slow to strike out a claim in a developing area of the law.
Is there a tenable cause of action for “general damage”?
[18] Damages are not a cause of action but a remedy, in the form of a monetary award which may be paid as compensation for a loss or injury, or to restore a plaintiff to the position he or she was in before a wrong was committed. Compensatory damages generally fall into two categories – special damages and general damages. Special damages are damages that are awarded to compensate a plaintiff for losses that can be readily quantified in money terms, such as damage to property or loss of profits. General damages are awarded to compensate for intangible losses that are not capable of objective quantification, such as pain and suffering or emotional distress. There is accordingly no cause of action for “general damage”. Rather, if a separate cause of action is proved, general damages may (in appropriate cases) be sought as a remedy. This cause of action is therefore untenable.
Is there a tenable cause of action for breaches of the Lease Agreement?
[19] This is a breach of contract cause of action. The Lease Agreement relied on by Mr Ward is his lease agreement with Galbraith, which has a final expiry date of 31 March 2017 (and which Mr Ward says then continued on a month to month basis).
2 In Couch v Attorney General, above n 1, Elias CJ and Anderson J, at [33], said: “It is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed”.
[20] Neither Mr Lochore nor Altranz are a party to the Lease Agreement. It necessarily follows that Mr Lochore cannot have breached clauses 13, 14 or 18 of that agreement, as alleged. Any contractual claim by Mr Ward for breach of his Lease Agreement with Galbraith must be brought against Galbraith. This cause of action is untenable.
Is there a tenable cause of action for breaches of the Property Law Act 2007?
[21] Mr Ward alleges that Mr Lochore has “violated Sections of the Property Law Act” by:
(a)not giving Mr Ward notice in writing;
(b)seizing Mr Ward’s goods;
(c)not getting a court order to evict Mr Ward and evicting him illegally; and
(d)changing locks without Mr Ward’s permission.
[22] Mr Ward does not specify which sections of the Property Law Act he relies on. I assume his intent may be to rely on one or more of the sections relating to the cancellation of leases (ss 243 – 264).
[23] Again, however, the difficulty Mr Ward faces with this cause of action is that his Lease Agreement is with Galbraith, not Mr Lochore. It is apparent from the preceding cause of action that Mr Ward relies on that document as the source of his authority to occupy Unit 9, up until he was evicted from the premises. It may, of course, be possible to advance alternative arguments, for example that Mr Ward was occupying the premises after 1 June 2018 pursuant to a short term oral sub-tenancy with Altranz. That is not, however, the way that his case has been pleaded.
[24] Further, any cause of action for breaches of such a sub-tenancy would lie against Altranz (the only party that could legally grant such a sub-tenancy), not Mr Lochore. Mr Lochore is simply not the holder of any property rights in the
premises, Altranz is. There is no lease agreement (either written or oral) between Mr Lochore and Mr Ward.
[25] To get around this difficulty, Mr Ward endeavoured to argue that Mr Lochore is indistinguishable from Altranz, because he is the sole director of Altranz. Such an argument is untenable. As a limited liability company, Altranz has a distinct legal personality from its director, who acts on behalf of the company. There is no evidence that Altranz is a ‘sham’, as Mr Ward suggests.
[26] I note Mr Ward has previously advanced a similar argument in another case, unsuccessfully. In that case, Associate Judge Gendall observed: 3
[64] [Mr Ward], whilst acknowledging that the plaintiff is a duly incorporated company, appears to suggest that it is in some way a fictitious entity, and that the Court should somehow lift the corporate veil here so as to find DTI Limited liable.
[65] Alternatively, [Mr Ward] appears to hold the view that the law should not distinguish between the plaintiff company or DTI Limited, or indeed Mr Thompson or Mr Browne. This fails to acknowledge that these parties are separate legal entities, and as I have noted, [Mr Ward’s] pleading does not in any way support a multiplicity of obligations under a single contract with one contracting party.
[27] Despite apparently having a broad understanding of the law in this area, it was clear that Mr Ward was nevertheless determined to pursue Mr Lochore personally. Mr Ward has had an opportunity to amend his claim, and has amended it. He has elected, however, not to apply to join Altranz as a party, or to seek to substitute Altranz for Mr Lochore. The reasons for his reluctance to do so are not clear, but may stem from the deep animosity that Mr Ward appears to have developed towards Mr Lochore (which is evident in both his pleading and his affidavits).
[28] Ultimately, the Property Law Act cause of action relies on the statutory duties owed by a holder of rights in land. It is not reasonably arguable that Mr Lochore holds the relevant rights. He is accordingly not subject to the corresponding duties. This cause of action is accordingly untenable.
3 Corporate Jet Services v Ward HC Auckland CIV-2006-404-357 18 May 2007.
Is there a tenable cause of action under the Crimes Act 1961?
[29] The final cause of action alleges Mr Lochore has committed a wide range of criminal offences under the Crimes Act 1961. Such allegations do not give rise to a civil cause of action. Rather, the appropriate course is for Mr Ward to complain to the police if he believes that crimes have been committed.
Conclusion
[30] Mr Ward may (or may not) have valid claims against Galbraith or Altranz, including a potential claim against Altranz as a bailee of his property. Mr Ward has elected, however, to solely pursue Mr Lochore personally. For the reasons I have outlined, all the causes of action against Mr Lochore are untenable.
Result
[31]The statement of claim dated 8 November 2018 is struck out.
[32] I award costs and disbursements in favour of Mr Lochore, as the successful party, on a 2B scale basis.
Katz J
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