CAMERON & COMPANY SOLICITORS NOMINEE COMPANY LTD v MCVICAR [2016] NZHC 298

CAMERON & COMPANY SOLICITORS NOMINEE COMPANY LTD v MCVICAR [2016] NZHC 298 [29 February 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2015-409-000665[2016] NZHC 298BETWEEN CAMERON & COMPANY SOLICITORSNOMINEE COMPANY LIMITEDPlaintiffAND JOHN GRANT MCVICARDefendantHearing: 18 February 2016Appearances: J J McCall for PlaintiffDefendant self-representedJudgment: 29 February 2016JUDGMENT OF ASSOCIATE JUDGE MATTHEWSIntroduction[1] Cameron & Company Solicitors Nominee Company Limited (Cameron) is the holder of a first priority registered mortgage over a property at 227 Fitzgerald Avenue, Christchurch (the property), owned by Mr N J Hayward. The mortgage provides security for a term loan agreement initially entered between Cameron and Mr Hayward on 7 October 2004 and later varied. Mr Hayward made payments to Cameron until November 2013, but has not paid any interest since then. Cameron has issued a notice under the Property Law Act 2007 calling up the mortgage and now wishes to exercise its right to sell the property as mortgagee, with vacant possession.[2] The defendant (Mr McVicar) occupies a building and the rear yard on the property under a lease from Mr Hayward signed on 10 August 2012, for a term of 15 years.[3] In this proceeding Cameron seeks by summary judgment orders that the agreement to lease between Mr McVicar and Mr Hayward is not binding on the plaintiff in terms of ss 105 or 119 of the Land Transfer Act 1952, and an order that Mr McVicar vacate the property. Mr McVicar opposes this application.Principles of summary judgment[4] Under r 12.2 of the High Court Rules the Court may give judgment against a defendant on a summary basis if a plaintiff satisfies the Court that the defendant does not have a defence to a cause of action in the statement of claim on which a plaintiff relies. The onus of establishing this position rests on the plaintiff.1 The classic exposition of this principle is in Auckett v Falvey:2On a summary judgment application, the onus is on the plaintiff to show that there is no defence. On the present facts, the plaintiffs are able to pass an evidential onus to the defendants by exhibiting the contract which on its face, entitles them to the remedy they now seek. The defendants are then in a position of having to demonstrate a tenable defence. However, the overall position concerning onus on the application is that at the end of the day the question is whether the plaintiffs have satisfied the Court as to the absence of a defence.[5] Evidence on applications for summary judgment is given by way of affidavit. It is necessary, therefore, to keep in mind the approach the Court is to take to evidence given in this way, summarised in Pemberton v Chappell:3Where the defence raises questions of fact upon which the outcome of the case may turn it will not often be right to enter summary judgment. There may however be cases in which the Court can be confident – that is to say, satisfied – that the defendant's statements as to matters of fact are baseless.The need to scrutinise affidavits, to see that they pass the threshold of credibility, is referred to Eng Mee Yong v Lethchumanan [1980] AC 331, 341 and in the judgment of Greig J in Attorney-General v Rakiura Holdings Ltd(Wellington CP23/86, 8 April 1986).[6] In Attorney-General v Rakiura Holdings Ltd, the Court said:4In a matter such as this it would not be normal for a Judge to attempt to resolve any conflicts in evidence contained in affidavits or to assess the credibility or plausibility of averments in them. On the other hand, in the1 Pemberton v Chappell [1987] 1 NZLR 1 (CA).2 Auckett v Falvey HC Wellington CP296/86, 20 August 1986 at 2.3 Pemberton v Chappell, above n 1, at 4.4 Attorney-General v Rakiura Holdings Ltd (1986) 1 PRNZ 12 (HC).words of Lord Diplock in Eng Mee Yong v Lethchumanan [1980] AC 331, at 341 E, the Judge is not bound:to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be.Is the agreement to lease binding on Cameron?The statutory framework[7] Section 105 of the Land Transfer Act provides:Transfer by mortgagee – Upon the registration of any transfer executed by a mortgagee for the purpose of exercising a power of sale over any land, the estate or interest of the mortgagor therein expressed to be transferred shall pass to and vest in the purchaser, freed and discharged from all liability on account of the mortgage, or of any estate or interest except an estate or interest created by any instrument which has priority over the mortgage or which by reason of the consent of the mortgagee is binding on him.[8] Section 119 of the Land Transfer Act provides as follows:Lease not binding on mortgagee without consentNo lease or mortgaged or encumbered land shall be binding upon the mortgagee except so far as the mortgagee has consented thereto.[9] The lease from Mr Hayward to Mr McVicar does not have priority over the mortgage from Mr Hayward to Cameron, so on sale of the property by Cameron as mortgagee, the leasehold interest of Mr McVicar will be discharged unless Cameron has consented to the lease.The meaning of "consent" in the Land Transfer Act[10] It is well-established that no particular form or method of consent is required by either ss 105 or 119.5 In New Zealand Fisheries Ltd v Napier City Council, Casey J applied the definition of consent in The Shorter Oxford English Dictionary, to"voluntarily accede to or acquiesce in a proposal, request, etc", clarifying that:6While ... this can be evidenced by conduct in all the circumstances of the case it must be borne in mind that the immediate parties, as well as any purchaser from a mortgagee or assignee of a lease will expect to be able to tell with reasonable certainty whether or not consent is being given. It5 New Zealand Fisheries Ltd v Napier City Council CA173/88, 24 November 1989.6 At 7.should not be too readily assumed or spelt out from the course of dealings between them.[11] Later, Casey J said:7Mere acquiescence in a state of affairs would not be enough ... acquiescence involves no more than the passive standing by without objection, whereas consent requires a positive affirmative act such as written or oral acceptance or even an implied acceptance by conduct.[12] This case was applied by the Court of Appeal in Harman & Co Solicitor Nominee Company v Secureland Mortgage Investments Nominees Ltd.8 The Courtalso considered a submission that the phrase "consent thereto" in s 119 meantconsent not just to the lease but to it being binding upon the mortgagee. In response to this argument the Court said:9In our view the words "has consented thereto" in s 119 mean "has consented to the lease", and do not require an express consent to accord the leasepriority.[13] In Cashmere Capital Ltd v Carroll, the Supreme Court affirmed the Court ofAppeal's narrow interpretation of consent, noting that the word appears in ss 105 and119 in the context of an exception to the general rule of indefeasibility of title.10McGrath J, writing for the Court, held that "[an] expansive approach to its meaning would not be consistent with the purpose of the legislation implementing the Torrens system of land tenure".11[14] In reliance on New Zealand Fisheries Ltd (among other appellate decisions), McGrath J held:[79] These decisions indicate that a consent which, under ss 105 and 119, binds a mortgagee to the competing estate or interest in another instrument, requires conduct which affirms the lease. A mortgagee who is aware of a third party's interest, and passively stands by, making no objection, has not consented. For there to be a valid consent the mortgagee must either have been aware of the essential terms of the lease or be shown to have consented to the lease whatever its terms may be. Only then does the mortgagee consent to the terms of the other instrument, in the sense of agreeing to be7 At 8.8 Harman & Co Solicitor Nominee Company v Secureland Mortgage Investments Nominees Ltd[1992] 2 NZLR 416 (CA) at 421.9 At 421.10 Cashmere Capital Ltd v Carroll [2009] NZSC 123, [2010] 1 NZLR 577 at [75].11 At [75].bound by it. Making an advance as mortgagee, while being aware of the other instrument and another party's interest in it, of itself, does not amount to consent.The issue[15] The issue in this case is whether Cameron has established that Mr McVicar has no defence to its claim, based on it having consented to the lease. Mr McVicar accepts that Cameron has not agreed to the lease orally or in writing. He maintainsCameron's consent can be inferred from its actions since 2012. In assessing whetherthis inference can be drawn, in the context of a summary judgment application, the Court is directed by the Supreme Court not to draw an inference too readily.12Interactions between the parties[16] Evidence for Cameron is given by Mr G A Falloon, a solicitor and a director of Cameron, and a partner in Cameron & Co, a firm of solicitors whose nominee company is the plaintiff. Cameron is a bare trustee holding the investments of anumber of contributors in the mortgage over Mr Hayward's land, pursuant to specificinvestment authorities. Between 2004 and 2007 Cameron made four advances to Mr Hayward totalling $378,000, which are secured by a first registered mortgage over Mr Hayward's property in Fitzgerald Avenue.[17] The building on the property was substantially damaged in the significant earthquake in Christchurch on 22 February 2011. In April 2011, Cameron learned that Mr Hayward had cancelled the insurance on the building in late 2010 and neither he nor the insurer had notified Cameron, even though its interest was noted on the policy.[18] Mr Hayward continued to pay interest on the loan, at an agreed reduced rate, until November 2013, but has not paid any interest since. For these reasons Cameron wishes to realise its security, and maintains it is entitled to sell the property with vacant possession.12 Cashmere Capital Ltd v Carroll [2009] NZSC 123, [2010] 1 NZLR 577 at [72] – [81].[19] The first contact Mr Falloon had with Mr McVicar was on 1 August 2012 when Mr McVicar telephoned him. Mr McVicar advised him that he had been leasing the premises for six months, that he was paying rent at $400 per week, that he was concerned that as a result of damage to the building by the Christchurch earthquakes CERA was going to demolish it, and that he wanted to repair the building.[20] Shortly after that conversation Mr McVicar delivered to the offices of Cameron & Co a copy of his agreement to lease with Mr Hayward. Mr Falloon saysthis document was left at the firm's reception desk, and he filed it with the Haywardnominee mortgage papers. Mr McVicar says he gave it to Mr Falloon. Nothing turns on this point: it is not in contention that Cameron had express notice of the existence and terms of the lease soon after it was entered.[21] After that, there were many telephone calls or personal visits by Mr McVicarto Mr Falloon's office. Mr McVicar was using the building he leased to run a Christchurch branch of a clothing sales business which he had set up in Auckland some time earlier. He also lived in a small part of the building. He was most concerned to ensure that the business could still be carried on from the building, and that he could continue to live there, despite the threats from CERA. Mr McVicar is a builder by trade and it was his intention that if possible, he could obtain the necessary consent for the building to be occupied so he could continue to live there and also run his business.[22] His relationship with Mr Hayward plainly deteriorated from a very early point. It is not clear to me from the evidence why this occurred, but one of the consequences was that Mr McVicar made frequent contact with Mr Falloon to talk tohim about what he described as the "goings on" at the property. Mr Falloon learned that the Police were involved in the disputes between Mr McVicar and Mr Hayward. One aspect of their disagreements arose from Mr Hayward purporting to cancel the lease for non-payment of the rent. It seems this was resolved, as Mr McVicar has remained in the premises and according to him, he paid rent until late in 2014. The disputes led to Mr Falloon being contacted by the Police, as a result of which he triedto arrange a meeting with Mr Hayward and Mr McVicar to resolve their differences. I refer to this attempt below.13[23] According to Mr Falloon, Mr McVicar did not at any time seek the consent of Cameron to the lease. He says that if a request had been made it would have been rejected as it would have impaired the security Cameron had over the property, which had already been adversely affected by the damaging effects of the February earthquake and the fact that the property was not insured at that time. Cameron'sposition is that nothing Mr Falloon said or did could be taken as amounting to consent. To the contrary, documents created at various times show consent had not been and would not be given.[24] In his affidavit filed in opposition to this application, Mr McVicar says that as he supplied a copy of the lease to Cameron, Cameron had notice of the lease, and Mr Falloon knew that Mr McVicar believed he was entitled to occupy the building pursuant to it. He says that Mr Falloon discussed with him in depth the work that he was doing on the building pursuant to the lease, acknowledged that this was for the benefit of the mortgagee and frequently thanked him for the effort that he was investing in making the building tenantable.[25] Summarising his position, Mr McVicar says:While the plaintiffs have not provided clear written consent, they are not entitled to take advantage of their conduct in encouraging the defendant to carry on work to the property when they have had notice of the lease and its terms and have held themselves out by their actions to have not only consented to and approved the lease but actively encouraged the defendant to fulfil his obligations pursuant to the lease.[26] Mr Falloon acknowledges that Mr McVicar maintained throughout that he was entitled to occupy the building pursuant to his lease, but says this was in the context of his telling Mr Falloon about the dispute he was having with Mr Hayward, who was endeavouring to evict him for non-payment of rent. Mr McVicar went to Clark Boyce, another firm of solicitors, which advised him and acted for him on thatissue. It was not a discussion in which Mr McVicar was seeking Cameron's consentto the lease. Mr Falloon says that the meeting suggested in the letter of 10 May 201313 At [33].was an endeavour to assist both Mr McVicar and Mr Hayward, given that he had been contacted by the Police as representing another party with an interest in the property, and that (as recorded in the letter) his suggestion of a meeting was not made pursuant to the terms of the mortgage. Mr Falloon rejects Mr McVicar'scontention that he relied on discussions between them, as well as the letter of 10 May, in forming the view that Cameron consented to the lease. He says that at notime prior to Thompson & Morgan's letter of 15 December 2014 was the issue of themortgagee consenting to the lease ever raised or discussed in any form or in any manner. His dealings with Mr McVicar were solely prompted by the fact that Mr McVicar was engaged in an ongoing dispute with Mr Hayward which had involved the Police who in turn had involved his firm as the solicitors for the mortgagee.[27] Given the disparity of these views it is appropriate to review the documents Mr Falloon relies on for his position.[28] In June 2014, a firm of solicitors then acting for Mr McVicar, Thompson &Morgan, wrote to Mr Falloon's firm for his attention, advising that relationshipsbetween Mr McVicar and Mr Hayward were not good. Mr McVicar was claiming that Mr Hayward was indebted to him for a considerable amount of money for repairs, and for obtaining professional reports on the property, but on the other hand Mr Hayward disputed these claims and alleged indebtedness by Mr McVicar for non- payment of rent. The solicitor concerned advised that Mr McVicar would like to meet Mr Falloon, "to determine the future of the above property". He then said:He is concerned that you may be taking enforcement action against him (we understand that Hayward is in default under the mortgage) and apart from whether this will affect the ability of Mr McVicar to retrieve the money owed to him by Hayward, he is also keen to preserve his quiet enjoyment and occupation of the site.[29] Thompson & Morgan followed this up with a further letter three days later advising that Mr McVicar had informed them that there were a number of errors in the letter, and that it did not represent his instructions. They asked that the letter be put to one side until they were able to accurately record the position. Mr Falloon replied to both letters on 11 July 2014 and stated:It is worthy to record that the first mortgagee does not acknowledge the existence of a valid lease to Mr McVicar and has certainly not consented to the same.Thompson & Morgan did not respond by disputing this assertion, or alleging consentby Cameron's conduct as Mr McVicar now contends.[30] In September 2011, Cameron & Co had instructed an independent firm of solicitors, Papprills, to act for their clients who had invested money in the contributory mortgage in issue. They took this step when they learned that the building on the property was not insured, perceiving a potential liability to the contributors. On 26 November 2014, Papprills wrote to Thompson & Morgan advising that they had instructions to proceed with a mortgagee sale of the property due to the arrears of interest under the mortgage. They advised that they required Mr McVicar to vacate the premises. They informed Thompson & Morgan that Cameron was not bound by the agreement to lease as it had not been given notice at the time it was entered into, nor had it consented to the lease. They advised that pursuant to s 119 of the Land Transfer Act the lease was not binding on Cameron as mortgagee. Mr McVicar was asked to vacate the premises by 23 December 2014.[31] Thompson & Morgan replied on 15 December 2014. They noted the advice that Cameron did not consent to the lease. They then said:The lease in fact was signed more than two years ago, and we note that a copy was provided to you and your client via Mr Falloon of Cameron & Co. It is arguable, then, that your client has consented to the lease, having had notice of it.[32] They described Papprill's view on the application of the Land Transfer Act asnarrow and advised that they did not agree it gave Cameron the right to terminate the lease.[33] Notably, Thompson & Morgan did not assert that consent had been given to the lease otherwise than by Cameron having had notice of it which, on the authorities to which I have referred, does not constitute consent.[34] In support of his position, Mr McVicar relies on a letter written by Mr Falloon on 10 May 2013 to both him and to Mr Hayward. This letter resulted from the involvement of the Police in the hostilities between Mr McVicar and Mr Hayward, which the Police had referred to Mr Falloon, presumably in the hope that he may be able to settle things down. Mr Falloon, it seems, took it upon himself to try to mediate. The letter is in the following terms:Dear GentlemenWe have been aware that for some months the two of you have been "at war".Currently your relationship is one of landlord and tenant. We make no comment at all in relation to the validity of that arrangement, suffice it to say that Mr McVicar occupies the premises at Fitzgerald Ave, and Mr Hayward is still the owner thereof.The Police have been regular visitors.We understand that you are both facing Police charges resulting out of incident at the property.Although the mortgagee has taken some action in relation to its mortgage, it is conceivable that no further action will be taken, with a result that your landlord and tenant relationship will persist.Looking at it from this distant point of view, we would have thought there would be merit for both of you in the continuation of that relationship, and the continuation of that relationship might be for the betterment of the property, and advantageous to the in [sic] investors in our mortgage.With that possibility, we suggest it might be a very good idea for us to facilitate meeting of the two of you, together with your advisors, with Police presence, with the writer present in an observing role only, and with a professional mediator to try and sort out your differences, and provide a working arrangement and agreement for the two of you going forward.You are both committed to the property. You are both deserving of applause for your commitment to the property and your ideas. You have different skill sets which could be well utilised to put in effect your ideas for the property. What is currently occurring between you is silly, unproductive, and unhelpful.The contemplated meeting would be without prejudice, an attempt only to achieve commonality and a resolution for matters to go forward; in short, to negotiate a settlement.Can you please come back to us and let us know whether you are interested in attending such a meeting, following which we will do our best to set it up. Please ber in mind that this action is taken irrespective of the mortgage, and certainly not pursuant to it. There will be a cost involved in relation to yourown advisors and the payment of what might be a professional mediator. We will likely need a commitment from you as to meet those costs but we would address that matter further after we have your responses.Yours faithfullyCAMERON & COMPANYG A FALLOONPartner[35] Mr McVicar says that he understood from this letter that Cameron intended to leave the lease in place. This letter, together with the positive discussions he had had with Mr Falloon, indicated to him that Cameron approved the lease and would honour his rights as lessee. He says that based on this he continued to work on the property, clearing rubbish and rubble and ensuring it was upgraded to a level required by CERA.[36] On the latter point, there is no dispute that Mr McVicar did carry out work on the premises, and obtained reports on the building which resulted in CERA deciding not to demolish it, and indeed resulted in registered valuers increasing the amount at which they had valued the building to take into account the fact that it was nowtenantable and let, by capitalising the rent under Mr McVicar's lease.[37] In 2013, at about the same time the Police were invoking Mr Falloon'sassistance, Mr McVicar expressed to Mr Falloon an interest in buying the property. It is clear that he could not afford to pay a deposit at the time, nor was he in a position to borrow money from an outside source. The proposals he discussed with Mr Falloon, which were then referred through Papprills to the contributors, involved his taking ownership of the property, and taking over the existing mortgage, by one or other of three different means. I need not set these out because none was accepted by the contributors, but the fact that his approaches were rejected has upset Mr McVicar.[38] Mr Falloon wrote to Mr McVicar on 10 May 2013, and then on 23 May 2013, in relation to his suggested means of buying the property. In the first letter Mr Falloon indicated that he did not have a response from the investors to MrMcVicar's proposal, but that it may be better if Mr McVicar could pay a deposit, oroffer another property as collateral security. It transpired this was not possible, and in the second letter Mr Falloon told Mr McVicar that the advice he had received from one of the two parties from whom he had to receive authorisation (the solicitoracting for the contributors, and the solicitor acting for his firm's insurer) was that theoffer should not be accepted.[39] It is clear that Mr McVicar is aggrieved by this. He is plainly very keen to remain in the building, he believes he has improved it by carrying out substantial clearing up and repairs of damage caused by the earthquakes, and that he has been responsible for an increase in the value of the building from which he should now benefit rather than Cameron, which he says encouraged him to undertake all the work he has done, and now fails to acknowledge his lease. He describes the conduct of Cameron in allowing him to do this work, and then maintaining that they did not consent to his lease, as both misleading and deceptive. He says that Cameron could have made its position clear earlier, before he put so much effort and financial investment into the property.Did Cameron's conduct amount to consent?[40] There can be little doubt that Cameron acquiesced in Mr McVicar being the lessee of the premises from Mr Hayward. That much is readily established by its knowledge of the existence and terms of the lease, its knowledge that Mr McVicar was living in and carrying on business in the premises whilst at the same time undertaking improvements to them, and its knowledge of, and endeavours to resolve, his ongoing differences with the owner, Mr Hayward. However, as noted by Casey J in New Zealand Fisheries Ltd v Napier City Council, consent requires a positive affirmative act such as written or oral acceptance or even an implied acceptance by conduct.14 The difference between acquiescence and implied acceptance by conduct may appear subtle, but it is in fact real. A substantial volume of material was put before the Court by Mr McVicar, from which he asks the Court to draw the conclusion I have summarised in the last paragraph. However, certain facts and contemporaneous documents support Mr Falloon's insistence that whilst he may14 New Zealand Fisheries Ltd v Napier City Council, above n 6, affirmed in Cashmere Capital Ltd v Carroll, above at n 11, at [78] – [79].have acquiesced in the premises being leased to Mr McVicar, he did not at any time consent.[41] First, despite the amount of material put before the Court by Mr McVicar, he does not at any point refer to any conversation with Mr Falloon or anyone else representing Cameron in which consent was given, implied or even discussed. He relies entirely on Cameron at least accepting, if not encouraging him, to carry out repairs on the premises, though Mr Falloon denies any such encouragement.[42] Secondly, when Thompson & Morgan wrote to Cameron & Co in June 2014,15 they did not allege that Mr McVicar was entitled to remain in the premises for the balance of his 15 year lease term because Cameron had consented to it. Rather, they noted that Cameron may be taking enforcement action against Mr Hayward, and Mr McVicar was therefore keen to preserve his "quiet enjoymentand occupation of the site", a stance they would not have needed to record if, bythen, Cameron had consented to the lease, because his right to remain would be protected by the Land Transfer Act. Although Thompson & Morgan purported to withdraw this letter, the response from Mr Falloon expressly stated that Cameron did not acknowledge the existence of a valid lease to Mr McVicar, and certainly had not consented to the same. As noted,16 Thompson & Morgan did not respond, nor allegeconsent had been given by Cameron's conduct. That was a point at which this issuecould have been raised, but it was not.[43] The third factor is also based on correspondence from Mr McVicar'ssolicitors. Through Thompson & Morgan, Mr McVicar was advised by Papprills that they would be proceeding with a mortgagee sale and they required Mr McVicar to vacate the property. His solicitors were expressly advised that Cameron had not consented to the lease. They referred to s 119 of the Land Transfer Act. The reply from Thompson & Morgan suggested that it was arguable that Cameron had consented to the lease, by virtue of having had notice of it. Notably it was not alleged, even as late as December 2014, by which point Mr McVicar had been the lessee for well over two years, had carried out a great deal of the work on the15 At [24] above.16 At [25] above.property, and had had many conversations with Mr Falloon, that Cameron & Co'sconsent could be inferred from their conduct.[44] Drawing the best conclusion I can from photographs put into evidence by Mr McVicar, he had carried out a good deal of the work on which he relies in 2013 and 2014. This was before Thompson & Morgan suggested in December 2014 consent could be inferred from notice of the lease, making no reference to Mr McVicar having carried out work which might constitute a fact from which consent should be inferred. And the valuation allowing for an increase in the value of the property as aresult of work Mr McVicar says he had done predates Thompson & Morgan's letterby nine months (14 March 2014).[45] Fourthly, when Mr Falloon wrote on 10 May 2013 to both Mr McVicar and to Mr Hayward, suggesting a meeting to resolve their differences at the behest of the Police, he made three relevant statements. First, having noted that the relationship between Mr McVicar and Mr Hayward was one of landlord and tenant, he expressly recorded that he made no comment at all in relation to the validity of that arrangement, save to say that Mr McVicar occupied the premises and Mr Hayward was still the owner.[46] Secondly, Mr Falloon expressly recorded that his arranging the meeting was astep taken irrespective of the mortgage his firm's nominee company held over thetitle, and was "certainly not pursuant to it". Neither of these statements is consistent with consent having been given.[47] Thirdly, Mr Falloon said:Although the mortgagee has taken some action in relation to its mortgage, it is conceivable that no further action will be taken, with a result that your landlord and tenant relationship will persist.[48] It is a clear inference from this that if the mortgagee did take further action, the landlord and tenant relationship would not persist – which implies that consent to that relationship had not been given.[49] Taking the documentary evidence as a whole, and considering all other elements of the evidence to which I have referred, I do not consider that Mr McVicar has laid an evidentiary foundation for the proposition that Cameron gave its consent to the lease, as distinct from acquiescing to it. Although I am cognisant that the onus of establishing that there is no defence rests on Cameron, and the inverse onus does not rest on Mr McVicar, I find that Cameron has established to the degree necessary for the entry of summary judgment, that Mr McVicar does not have an arguable defence based on it having given its consent to the lease. The evidence does not establish an arguable position that there has been positive affirmation by Cameron'sconduct amounting to consent. In particular, documents written during the course of the period when Mr McVicar maintains such affirmation might be found negate that position, or are inconsistent with it.Outcome[50] I make orders in terms of the application for summary judgment dated 9 October 2015, save that the time for compliance with order 1.2 will be 40 working days from the date of this judgment, a period I consider reasonable given that Mr McVicar not only lives in the premises but also has stock for his business which will need to be relocated.[51] Mr Falloon seeks costs. Mr McVicar opposes an order, and says he cannot pay. In my view the ordinary principle that costs should be awarded to a successful party should apply. Mr McVicar is to pay costs on a 2B basis with disbursements fixed by the Registrar._______________________J G MatthewsAssociate JudgeSolicitors:Papprills, Lawyers, Christchurch.Copy to: J G McVicar, Christchurch.