HARD TO FIND BUT WORTH THE EFFORT QUALITY SECONDHAND BOOKS (WELLINGTON) LIMITED (IN LIQUIDATION) V YONG QUAN HE, JUN YOU HE & JUN NA HE HC WN CIV 2006-485-2078

HARD TO FIND BUT WORTH THE EFFORT QUALITY SECONDHAND BOOKS (WELLINGTON) LIMITED (IN LIQUIDATION) V YONG QUAN HE, JUN YOU HE & JUN NA HE HC WN CIV 2006-485- 2078 25 July 2007IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2006-485-2078UNDER the District Courts Act 1947 IN THE MATTER OF an appeal under Section 72(2) from a decision of the Wellington District Council CIV 2005-085-632 dated 21 August 2006 BETWEEN HARD TO FIND BUT WORTH THE EFFORT QUALITY SECONDHAND BOOKS (WELLINGTON) LIMITED (IN LIQUIDATION) Appellant AND YONG QUAN HE, JUN YOU HE & JUN NA HE Respondents Appearances: D Smith for Appellant P Withnall for Respondents Judgment: 25 July 2007JUDGMENT OF MILLER J ON APPLICATION FOR LEAVE TO APPEAL[1] Counsel have agreed that I may deal with Mr Withnall's application for leave to appeal to the Court of Appeal on the papers. I will set out my reasons shortly, for I have decided that leave should be granted. [2] Mr Withnall correctly submits that my judgment raises a question of law concerning the effect of an election to distrain for unpaid rent upon the right to terminate for non-payment of the same rent. I accept that the issue is capable ofbone fide and serious argument; Waller v Hider [1998] 1 NZLR 412. Although the paucity of reported cases under the Distress and Replevin Act would suggest that it is not a matter of general importance, I accept that it is important to the parties.There is also something in Mr Withnall's submission that the issue has not been twice considered because it was not developed at first instance. It is not necessary to deal with Mr Withnall's alternative argument that the damages for conversion should be confined to the items distrained on 8 February 2005. But I observe that that does appear to be a departure from the basis on which the case was argued before me and in the District Court; see paragraph 35 of my judgment. [3] There will be leave to appeal, conditional upon the respondents filing their appeal within 14 days of the date of this judgment. [4] I will address the outstanding question of costs in a separate judgment. F Miller JSolicitors: Greg Dunning & Associates, Auckland for Appellants Peter J Morahan, Lower Hutt for Respondents