GAN V WILFRD HC CHCH CIV-2013-409-000442

GAN V WILFRD HC CHCH CIV-2013-409-000442

The Court granted an interim order for possession because the plaintiffs demonstrated a strong arguable case (default under the head lease and disclaimer by liquidator), damages would not be an adequate remedy given the defendants' precarious financial position, the balance of convenience favoured plaintiffs (uncertain ability of defendants to meet arrears or damages and status quo following disclaimer), and overall justice favoured immediate possession.

Citation
openlaw-12ff1af2_8666_4369_ab23_e909859ec673.pdf
Parties
Plaintiff: Kaiwan Gan; Plaintiff: Juzhen Yu; First Defendant: Harmon Lynn Wilfred; Second Defendant: Carolyn Ruth Dare-Wilfred; Third Defendant: Angela Maree Smalley; Fourth Defendant: La Famia No. 1 Limited; Fifth Defendant: La Famia No. 4 Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 March 2013
Procedural Posture
Application for Interim Possession (civil) / Interlocutory Hearing / Interim Relief Stage
Outcome
Interim order for possession granted in favour of plaintiffs
Legal Topics
Interim Relief, Possession, Liquidator Disclaimer of Lease (s269), Sublease Protection and Relief (ss258 260 Property Law Act 2007), Estoppel and Waiver, Balance of Convenience, Undertaking as to Damages
Property Law Company Law Insolvency Law Civil Procedure Interim Relief Possession Liquidator Disclaimer of Lease (s269) Sublease Protection and Relief (ss258 260 Property Law Act 2007) +3 more

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Parties

Kaiwan Gan

Plaintiff

Juzhen Yu

Plaintiff

Harmon Lynn Wilfred

First Defendant

Carolyn Ruth Dare-Wilfred

Second Defendant

Angela Maree Smalley

Third Defendant

La Famia No. 1 Limited

Fourth Defendant

La Famia No. 4 Limited

Fifth Defendant

Procedural Posture

Application for Interim Possession (civil) / Interlocutory Hearing / Interim Relief Stage

Legal Issues

  1. 1 Whether plaintiffs have an arguable case for possession of premises
  2. 2 Effect of liquidator's disclaimer under Companies Act s269 on sub-lessees' rights
  3. 3 Whether fourth and fifth defendants qualify as 'sublessees' given head lease prohibition on sub-letting

Ratio Decidendi

The Court granted an interim order for possession because the plaintiffs demonstrated a strong arguable case (default under the head lease and disclaimer by liquidator), damages would not be an adequate remedy given the defendants' precarious financial position, the balance of convenience favoured plaintiffs (uncertain ability of defendants to meet arrears or damages and status quo following disclaimer), and overall justice favoured immediate possession.

Court Disposition

Interim order for possession granted in favour of plaintiffs

Orders

  • Interim order for possession granted to plaintiffs
  • Defendants to vacate premises by 5pm on 18 March 2013