4 Aug 2023
The Court held Wendco failed art 17B(1)(c) because there was no reasonable possibility it would succeed on the merits: contemporaneous documents disproved any binding 2018 lease renewal and the Addendum plainly operated only while Wendy's NZ owned the premises; accordingly interim relief was declined and the preservation order discharged.
24 Mar 2022
The Court exercised its discretion and awarded costs to the plaintiffs on a 2B basis with specific allowances: one day for inspection of documents, three days for preparation for hearing, two days for filing the originating application and affidavit (allowing amendment work), 0.4 days for the costs memorandum, costs for filing memoranda for case management conferences relating to progression of the matter, and 1.5 days for written submissions; these adjustments reflect the reality that the originating application process was used to expedite the dispute and the successful party should not be…
20 May 2020
Mad Butcher was only entitled to the $40,021.59 secured debt; clause 16 did not survive beyond the holding‑over period terminated by liquidation, cl21.1(d) was not effectively exercised because it was conditional on Mad Butcher procuring a lease which it failed to obtain, and therefore Mad Butcher suffered no recoverable loss from the liquidators' sale; accordingly Soncam is entitled to an order requiring release and discharge of the registered security on repayment of $40,021.59 and the liquidators succeed on the counterclaim.
8 Nov 2019
The Court held Marphona failed to discharge the onus for summary judgment because NYX was holding over under an express contractual periodic tenancy (clause 36.1) rather than solely as a statutory tenant under s210, there were material factual disputes (including an asserted agreement deferring rent pending a Code Compliance Certificate and whether re-entry occurred within the notice period), and Marphona's pleadings and evidence on rent and repair costs were inadequate; accordingly summary judgment was dismissed.
26 Feb 2018
The statutory demand was set aside in part because the applicant established an arguable genuine and substantial dispute as to the post-1 July 2017 rental: holding-over requires consensual continuation and there were arguable factual indicia that possession had been given up so rent after 1 July was contested; make-good costs were paid thus that component was satisfied; the alleged oral full and final settlement was unenforceable as it was not performed and Cook Strait cancelled it; consequentially the demand was upheld only for a net June 2017 balance of $6,607.06 which the applicant was ord…
7 Feb 2018
The notice of termination was valid: it was served, an agreed extension did not undermine termination, and the express holding-over clause meant s210 did not apply; accordingly the court, under s251, ordered possession and cancelled the lease.
9 Feb 2015
The guarantee in the original lease expressly extended to any holding over; evidence showed the tenant continued occupation and paid adjusted rent from 1 December 2007; the guarantors had negotiated the arrangements and therefore could not rely on any discharge by variation; accordingly the guarantors remained jointly and severally liable for unpaid rent accruing during the holding over period up to the tenant's vacation on 4 August 2014.
26 Sept 2013
RRL could have taken the property free of the lease because ANZ had not consented, but RRL elected to assume the role of lessor and to enforce the lease; having elected to adopt the lease with full knowledge of the Variation of Lease, RRL could not accept the lease's benefits while repudiating the variation, and therefore became bound by the lease as varied; there was no actionable fraud by RRL and unconscionability was not established.
21 Dec 2012
Judge found on balance that an oral agreement to renew the lease was made on 21 November 2011; although s24 would otherwise bar enforcement the plaintiff performed unequivocal acts (instructing solicitors and issuing a renewal tax invoice) and the defendant's conduct in accepting outgoings made it unconscionable to rely on s24, so the oral contract was partly performed and thus enforceable; remedy left for further argument.
17 May 2012
The head tenant (Westfield) did not hold over because it did not remain in factual physical occupation; the landlord (Tinline) accepted the undertenant (Barrington Trading) as its tenant by permitting continued occupation and accepting payments through its agent such that clause 2.2 did not impose rent liability on Westfield, so defendants succeed.