Whitley v Stewart St Properties Ltd HC Auckland CIV-2011-404-6621

[2011] NZHC 1718

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-6621

BETWEEN  KEVIN JOHN WHITLEY Applicant

ANDSTEWART ST PROPERTIES LTD First Respondent

ANDTHE BOOMERANG INN LTD Second Respondent

ANDBONNIE DAWN JOHNSON Third Respondent

ANDFM CUSTODIANS LTD Fourth Respondent

ANDHUGH ALAN SMITH Fifth Respondent

ANDROSE RIHIA Sixth Respondent

ANDPETER KINGI Seventh Respondent

AND  MARY TITI

Eighth Respondent

ANDIAN CARRINGTON Ninth Respondent

ANDKAREN MARSH Tenth Respondent

ANDGEORGE POWELL Eleventh Respondent

ANDJOEL JOHNSON Twelfth Respondent

ANDPHILLIP WOOD Thirteenth Respondent

ANDFREDERICK WEBB Fourteenth Respondent

WHITLEY V STEWART ST PROPERTIES LTD HC AK CIV-2011-404-6621 1 December 2011

ANDGRAHAM BUNTING Fifteenth Respondent

Judgment:      1 December 2011

JUDGMENT (NO.2) OF BREWER J

[1]      By judgment delivered on 25 November 2011:

(a)      I dismissed Ms Johnson’s interlocutory application and found that her

occupation status at the complex was as a service occupant;

(b)I found that Mr Smith’s status as occupier of a unit at the complex is not subject to the Residential Tenancies Act 1986;

(c)      I varied White J’s order by inserting an amendment which would allow other occupants to apply to the Tenancy Tribunal to have their occupancy status determined; and

(d)      I lifted Heath J’s interim injunction.

[2]      The applicant has now filed a without notice application for possession order aimed  at  enforcing  my  judgment.    The  affidavits  of  Robert  Bruce  Hucker  and Danisha Lanihao Lang Siu sworn in support of the without notice application are to the effect that notwithstanding my rulings Ms Johnson and Mr Smith together with a Ms Lambert have applied to the Tenancy Tribunal seeking orders that they are:

[L]awfully entitled to continue with their original tenancy arrangements protected from and undisturbed by the activities of Kevin J Whitley, receiver for the time being, of the business described as The Boomerang Country Inn, pending the outcome of a full investigation by enforcement agencies or further  proceedings  which  may  be  initiated  by  any  party  affected  by Whitley’s actions.

[3]      Mr Smith describes himself as “tenant representing sub-tenants”.

[4]      The possession order now sought by the applicant seeks authorisation to take possession of the relevant land including that portion occupied by Ms Johnson and Mr Smith but excluding the land occupied by any other occupants.

[5]      I  am  satisfied  that  the  applicant  is  entitled  to  the  possession  order  now sought.  It accurately provides for the enforcement of my judgment of 25 November

2011.  I will grant the orders with two amendments – both of which are to the effect of assisting with interpretation.  The possession order will accordingly be as annexed

to this judgment.

Brewer J

Solicitors:

Hucker & Associates, Auckland