ALARM NEW ZEALAND LTD v 15 HOPETOUN LIMITED [2016] NZHC 813

ALARM NEW ZEALAND LTD v 15 HOPETOUN LIMITED [2016] NZHC 813

There is a serious question to be tried as to whether Alarm NZ holds rights under the lease (or by substitution) in carparks 73–76 and whether transfer would amount to trespass or breach of lease; however, on balance of convenience and having found damages would be an adequate remedy and having given weight to the...

Source-derived case information.

Citation
[2016] NZHC 813
Parties
Plaintiff/applicant: Alarm New Zealand Ltd; Defendant/respondent: 15 Hopetoun Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
27 April 2016
Procedural Posture
Interim Injunction Application / Interim Hearing and Decision (high Court)
Outcome
Application dismissed in relation to carparks 73 and 74; application granted in relation to carparks 75 and 76; costs reserved.
Legal Topics
Lease Interpretation, Exclusive Possession, Trespass, Interim Injunctions (american Cyanamid Test), Derogation From Grant, Unit Title Allocations, Equitable Interests, Adequacy of Damages
Property Law Contract Law Tort Equity Civil Procedure Building Law Lease Interpretation Exclusive Possession +6 more

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Parties

Alarm New Zealand Ltd

Plaintiff/applicant

15 Hopetoun Limited

Defendant/respondent

Procedural Posture

Interim Injunction Application / Interim Hearing and Decision (high Court)

Legal Issues

  1. 1 Whether the lease granted exclusive rights to specific carpark spaces or only ten covered spaces
  2. 2 Whether Alarm NZ obtained rights to carparks 73–76 by variation/substitution and whether those rights predate the 2B purchaser's equitable interest
  3. 3 Whether sale or transfer of carparks 73 and 74 would constitute actionable trespass or derogation from grant

Ratio Decidendi

There is a serious question to be tried as to whether Alarm NZ holds rights under the lease (or by substitution) in carparks 73–76 and whether transfer would amount to trespass or breach of lease; however, on balance of convenience and having found damages would be an adequate remedy and having given weight to the legitimate interests of the innocent 2B purchaser and her mortgagee, the interim injunction was denied for carparks 73 and 74 but granted for carparks 75 and 76, with costs reserved.

Court Disposition

Application dismissed in relation to carparks 73 and 74; application granted in relation to carparks 75 and 76; costs reserved.

Orders

  • Application for interim injunction dismissed in respect of carparks 73 and 74
  • Interim injunction granted restraining the defendant from selling, transferring, or providing exclusive possession of carparks 75 and 76 pending the substantive hearing