GJ INGRAM & E BEVAN AND ANOR V PATCROFT PROPERTIES LTD AND ANOR HC AK CIV 2006-404-4171

GJ INGRAM & E BEVAN AND ANOR V PATCROFT PROPERTIES LTD AND ANOR HC AK CIV 2006-404-4171

The lessor's re-entry on 14 June 2005 was unlawful because it preceded the 14-day arrears period in the lease; any purported distraint was invalid once re-entry occurred; set-off was barred by lease terms and prior arbitral/Court rulings; plaintiffs were not obliged in the circumstances to seek immediate relief against forfeiture; company losses were treated as losses of the first plaintiffs on Esso/assignment principles; accordingly plaintiffs recover assessed business-damage sums (first plaintiffs NZD136,597.55; second plaintiff NZD162,935.04) and the lessor succeeds on its counterclaim in part (NZD84,906.53); no personal liability against the director was established.

Citation
openlaw-656d9be3_9580_4132_bcbf_3a492348b29f.pdf
Parties
First Plaintiff: GJ INGRAM & E BEVAN; Second Plaintiff: KIP Investments Ltd; First Defendant: Patcroft Properties Ltd; Second Defendant: J O'Donnell
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 July 2009
Procedural Posture
Civil (landlord and Tenant; Conversion; Damages) / Final Judgment (high Court of New Zealand, 9 July 2009)
Outcome
Judgment for plaintiffs in part and for first defendant on counterclaim in part; director claim dismissed; costs and interest reserved
Legal Topics
Re Entry, Distress/distraint, Relief Against Forfeiture (s119), Set Off, Waiver, Mitigation of Loss, Assignment/sublease and Privity, Piercing Corporate Veil/company Loss, Valuation of Business, Personal Liability of Director
Landlord and Tenant Property Law Contract Law Tort (conversion) Remedies (damages & Relief Against Forfeiture) Commercial Law Re Entry Distress/distraint +8 more

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Parties

GJ INGRAM & E BEVAN

First Plaintiff

KIP Investments Ltd

Second Plaintiff

Patcroft Properties Ltd

First Defendant

J O'Donnell

Second Defendant

Procedural Posture

Civil (landlord and Tenant; Conversion; Damages) / Final Judgment (high Court of New Zealand, 9 July 2009)

Legal Issues

  1. 1 Whether lessor's re-entry on 14 June 2005 was lawful (14-day clause breach)
  2. 2 Whether distraint was lawful or invalidated by re-entry
  3. 3 Whether lessees could set-off lift maintenance overpayments against rent

Ratio Decidendi

The lessor's re-entry on 14 June 2005 was unlawful because it preceded the 14-day arrears period in the lease; any purported distraint was invalid once re-entry occurred; set-off was barred by lease terms and prior arbitral/Court rulings; plaintiffs were not obliged in the circumstances to seek immediate relief against forfeiture; company losses were treated as losses of the first plaintiffs on Esso/assignment principles; accordingly plaintiffs recover assessed business-damage sums (first plaintiffs NZD136,597.55; second plaintiff NZD162,935.04) and the lessor succeeds on its counterclaim in part (NZD84,906.53); no personal liability against the director was established.

Court Disposition

Judgment for plaintiffs in part and for first defendant on counterclaim in part; director claim dismissed; costs and interest reserved

Orders

  • First Plaintiffs (GJ Ingram & E Bevan) awarded NZD 136597.55 against First Defendant Patcroft Properties Ltd (NZD 100000 business loss + NZD 36597.55 lift maintenance overpayment)
  • Second Plaintiff (KIP Investments Ltd) awarded NZD 162935.04 against First Defendant Patcroft Properties Ltd (NZD 100000 business loss + NZD 62935.04 payable to NZ Breweries Ltd that the defendant must account for)