TURRALL v BLUETT [2016] NZHC 000064

TURRALL v BLUETT [2016] NZHC 000064 [3 February 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-1706[2016] NZHC 000064IN THE MATTER of Section 244 of the Property Law Act2007BETWEEN JOHN GRAHAM TURRALL ANDPETER WILLIAM BUTLER ASTRUSTEES OF THE CARLER FAMILYTRUSTApplicantsAND BRIAN GRAHAM BLUETT AND TODDGRAHAM BRUCE BLUETTRespondentsHearing: 3 February 2016Appearances: A Gilchrist for the ApplicantsDJ MacRae for the RespondentsJudgment: 3 February 2016ORAL JUDGMENT OF TOOGOOD J[1] The applicants have brought an originating application under s 244 of the Property Law Act 2007 seeking orders for possession of land, cancellation of a lease and judgment for the payment of outstanding rent, interest and costs. The claim concerns a property on the Ellerslie-Panmure Highway which is operated as a motel. The respondents are the current lessees of the property.[2] The respondents filed a pleading opposing the application upon a number of grounds, including a substantial ground that the applicants had breached a pre- contractual representation that they would be granted an extension of the lease. They said that in view of that breach they were thwarted in their plans to sell the business.[3] Yesterday Mr MacRae, counsel for the respondents, properly informed the Court and the applicants that the respondents would not take any steps at the hearing to oppose the application and would take no part. As a courtesy to the Court, Mr MacRae has appeared nevertheless to confirm that he is instructed not to oppose the application but, as I understand it, the respondents do not consent.[4] After hearing from counsel, I am content to deal with the matter by way of formal proof. It is not necessary for any oral evidence to be given because the evidence has been provided to the Court by way of affidavit in accordance with the usual procedure for originating applications.[5] I am satisfied that the respondents are seriously in default of their obligations under the lease to pay rent and that the applicants have made out the grounds for the orders they seek. The statutory grounds are that the rent has been in arrears for not less than 10 working days and the respondents have failed to remedy their breach despite receiving notices requiring them to do so. I am further satisfied that none of the grounds of opposition advanced by the respondents affords them any defence tothe applicants' claims.[6] Accordingly, there will be orders in terms of the draft filed by Mr Gilchrist, subject to a slight variation to the claim for costs on account of the matter proceeding by way of formal proof rather than following a defended hearing. The applicantshave properly instructed Mr Gilchrist that their claim for costs may be reduced by the sum of $3,500.[7] The orders, therefore, are as follows:(a) An order granting to the applicants possession of the land situated at 384 Ellerslie-Panmure Highway, Auckland (being all that parcel of land containing 3,132 square metres more or less on Lot 1, Deposited Plan 71933, and being contained in Identifier NA 54D/1335 (North Auckland Registry)), currently subject to a lease between the applicants as landlord and the respondents as tenant.(b) An order cancelling the lease between the applicants and the respondents under Identifier 159696 (North Auckland Registry).(c) I enter judgment for the respondents requiring them to pay to the applicants rent and outgoings totalling $979,796.70, being the amount owing as at 3 February 2016, together with unpaid rental, penalties and interest owing between 3 February 2016 and the date upon which the applicants take actual possession of the property.(d) The respondents shall pay costs and disbursements to the applicants in accordance with the lease in the sum of $23,992.25..Toogood J