KIWI PROPERTY HOLDINGS LIMITED & Anor V AMETHYST RETAIL HOLDINGS LIMITED & Anor HC TAU CIV-2011-470-0693

KIWI PROPERTY HOLDINGS LIMITED & Anor V AMETHYST RETAIL HOLDINGS LIMITED & Anor HC TAU CIV-2011-470-0693

Defendants failed to establish a tenable defence to being indebted: repayment plan was not complied with as shown by defendants' own schedule and admitted liabilities; two payments conceded did not discharge arrears; express lease clauses requiring payment without set-off precluded cross-claims; implied terms alleged by defendants were not necessary, obvious or consistent with express terms. Accordingly summary judgment on liability was entered for plaintiffs and only quantum remained to be determined.

Citation
openlaw-3736399d_45e6_49f7_a906_00ccaef030c6.pdf
Parties
First Plaintiff: Kiwi Property Holdings Limited; Second Plaintiff: Sylvia Park Business Centre Limited; First Defendant: Amethyst Retail Holdings Limited; Second Defendant: Adam Stewart Ross
Court
High Court
Jurisdiction
New Zealand
Judgment Date
1 March 2012
Procedural Posture
Civil Summary Judgment Application for Recovery of Rent Under Leases and Guarantee / Summary Judgment on Liability Entered; Quantum Reserved for Further Determination
Outcome
Judgment entered for plaintiffs on liability; defendants declared liable for unpaid rent under the leases; quantum to be determined and plaintiffs granted leave to amend statement of claim to state current amount sought
Legal Topics
Summary Judgment, Guarantee, Set Off, Implied Terms, Quiet Enjoyment, Rent Arrears
Contract Property Commercial Law Civil Procedure Landlord and Tenant Law Summary Judgment Guarantee Set Off +3 more

Case Brief

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Parties

Kiwi Property Holdings Limited

First Plaintiff

Sylvia Park Business Centre Limited

Second Plaintiff

Amethyst Retail Holdings Limited

First Defendant

Adam Stewart Ross

Second Defendant

Procedural Posture

Civil Summary Judgment Application for Recovery of Rent Under Leases and Guarantee / Summary Judgment on Liability Entered; Quantum Reserved for Further Determination

Legal Issues

  1. 1 Whether defendants have any bona fide defence to indebtedness for unpaid rent
  2. 2 Whether payments under a repayment deed/recovery plan discharged the defendants' liability
  3. 3 Whether express lease clauses excluding set-off bar cross-claims/counterclaims for alleged breaches

Ratio Decidendi

Defendants failed to establish a tenable defence to being indebted: repayment plan was not complied with as shown by defendants' own schedule and admitted liabilities; two payments conceded did not discharge arrears; express lease clauses requiring payment without set-off precluded cross-claims; implied terms alleged by defendants were not necessary, obvious or consistent with express terms. Accordingly summary judgment on liability was entered for plaintiffs and only quantum remained to be determined.

Court Disposition

Judgment entered for plaintiffs on liability; defendants declared liable for unpaid rent under the leases; quantum to be determined and plaintiffs granted leave to amend statement of claim to state current amount sought

Orders

  • Pursuant to High Court Rules r 12.3 judgment is entered declaring defendants liable for unpaid rent arising from the leases in the plaintiffs' amended statement of claim
  • Pursuant to Judicature Act 1908 s 26I(d) Court will determine the amount of the debt if parties cannot agree