Whitley v Stewart St Properties Limited HC Auckland CIV 2011-404-6621
[2011] NZHC 1232
•21 October 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2011-404-6621
IN THE MATTER OF Memorandum of Mortgage No 8162488.2 and GSA dated 9 June 2009
AND IN THE MATTER OF of Section 137 of the Property Law Act
2007 and section 34(1) of the Receiverships
Act 1983
BETWEEN KEVIN JOHN WHITLEY Applicant
ANDSTEWART ST PROPERTIES LIMITED First Respondent
ANDTHE BOOMERANG INN LIMITED Second Respondent
Hearing: 21 October 2011 (by telephone) Counsel: R B Hucker for Applicant
M Heard for Respondents
Judgment: 21 October 2011
(ORAL) JUDGMENT OF HEATH J
Solicitors:
Hucker & Associates, PO Box 3843, Shortland Street, Auckland
Richard Allen, PO Box 78326, AucklandLee Salmon Long, PO Box 2026, Shortland Street, Auckland
WHITLEY V STEWART ST PROPERTIES LIMITED HC AK CIV 2011-404-6621 21 October 2011
[1] On 17 October 2011, Mr Whitley made an application (on a without notice basis) for an order granting possession of a property located at 1474 Great South Road, Ramarama, known as The Boomerang Inn. The application was made under s 137(c) of the Property Law Act 2007 (in respect of a mortgage in favour of Mr Whitley’s appointor) and s 34(1) of the Receiverships Act 1993 (in his capacity as receiver of income). Mr Whitley was the receiver of companies called Stewart Street Properties Ltd and the Boomerang Inn Ltd, having been appointed by the holder of a General Security Agreement. He had the right to income under a mortgage.
[2] On the basis that the receiver was entitled to exclusive possession of the land, an order was made on a without notice basis by White J, on 18 October 2011.
[3] The evidence in support of the application disclosed the basis of Mr Whitley’s appointments and various aspects that had come to his attention while attempts were being made to obtain possession of the property. Mr Whitley included in his affidavit a statement that he had been advised of his obligation to make full disclosure to the Court and drew attention to the existence of a Deed of Lease between Stewart Street Properties Ltd and the Boomerang Inn Ltd. No reference was made to the possibility of any tenancy of all or part of the property in favour of third parties.
[4] In accordance with the relevant provisions of the High Court Rules, the Registrar sealed an order authorising an enforcing officer to take possession of the land on behalf of Mr Whitley, to eject others from the land as necessary and to seize the chattels that were the subject of the order. Attempts have been made today to enforce the order.
[5] An application has been made by Stewart Street Properties Ltd and the Boomerang Inn Ltd for orders varying those made by White J, to exclude from the scope of the order tenancies arising from fixed term leases to individuals. They apply to units occupied within the Inn complex. An affidavit from one of the alleged tenants, Mr Smith, has been filed in which he has identified 11 other persons who are said to have residential tenancies on fixed terms.
[6] The order sought is designed to exclude these tenancies from the scope of the order. I am not satisfied at this stage that that is the appropriate order. However, given that there is a seriously arguable case that tenancies of the type described by Mr Smith could fall within the Residential Tenancies Act 1986, I consider that there should be an injunction issued, pending further order of the Court, to prevent steps being taken to eject any of the named persons from the premises.
[7] An order to that effect will have the benefit of not interfering with the receivers’ right to safeguard the business assets contained in the Inn or to receive rents from those who allege that they are tenants. It will be necessary to put into place orders which will permit the issue to be determined as promptly as possible.
[8] On the application made by Stewart Street Properties Ltd and the Boomerang Inn Ltd, I make an interim injunction restraining Mr Whitley or any person acting on his behalf pursuant to the orders sealed on 20 October 2011, from taking any steps to eject Mr Smith and any of the other 11 “tenants” (named in para 4 of Mr Smith’s affidavit) from the property, pending further order of the Court. The injunction has the effect of restraining Mr Whitley and his agents from taking possession of any personal chattels of each of the alleged tenants. It does not affect the ability of Mr Whitley to control access to common areas, such as the restaurant and the bar. If any of the alleged tenants are (or become) in breach of their agreements, Mr Whitley may seek immediate termination of the injunction.
[9] I make an order joining the 12 named “tenants” as parties to the proceeding. Service of relevant documents shall be effected on each of them by midday on 26
October 2011.
[10] Mr Heard, for the applicants and (if instructed) the “tenants” shall file and
serve an application to vary the terms of the possession orders by 5pm on 26 October
2011. By the same time, affidavits shall be filed in support from each of the persons who allege to have a residential tenancy. Each affidavit shall annex the relevant tenancy agreement.
[11] By 5pm on 28 October 2011, Mr Whitley shall file and serve a notice of opposition and any affidavits in opposition.
[12] The proceeding shall be listed before the Duty Judge at 10am on 31 October
2011 to determine whether an urgent hearing is required in relation to the scope of the order, having regard to the evidence as to the existence of residential tenancies and whether the type of tenancy alleged within the scope of the Residential Tenancies Act and within the jurisdiction of the Tenancy Tribunal. I envisage that if there were to be an argument on that issue, that a prompt hearing should be arranged at the earliest date that can be accommodated by the Registrar.
[13] Leave to apply on short notice is reserved.
[14] All costs in relation to today’s attendances are reserved.
P R Heath J
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