New Zealand Case Law: Decisions & Judgments

Topic

Implied surrender

Legal area

Court

5 Jul 2023

WESTCITY NZ PTY LIMITED & ORS v FOX EARS LIMITED [2023] NZHC 1720

Citation

[2023] NZHC 1720
Court

High Court

There was a genuine and substantial dispute as to the debt claimed because the evidence (reletting to Health 2000 Retail Ltd by way of a new lease rather than an assignment, correspondence requesting surrender, and an account entry applying the security deposit as 'Lease Surrender') supported at least an arguable implied surrender; proceeding to appoint liquidators on the disputed debt would be an abuse of process, so the liquidation application was dismissed.
10 Aug 2020

FREMA PROPERTIES LTD v SHELF COMPANY NO. 5 LTD [2020] NZHC 1994

Citation

[2020] NZHC 1994
Court

High Court

The Court held the lease had been surrendered by operation of law through tenant abandonment and Frema's acceptance (including marketing and sale with vacant possession), so no reversion existed at sale; alternatively, the sale with vacant possession evidenced a contrary intention under s 233(2) such that s 233(1) did not displace Frema's right to recover antecedent rent, and therefore the appeal was allowed.
10 Apr 2017

LEE AND KERSLAKE v AIL INVESTMENTS LIMITED [2017] NZHC 661

Citation

(2017) 18 NZCPR 234
Court

High Court

Lease was not surrendered by operation of law because the deed of assignment was never effectively delivered, the parties objectively intended the original lease to remain in force when Sligo occupied, and AIL's receipt of rent from Sligo did not demonstrate acceptance of surrender; therefore AINZ remained the lessee and the appellants remained liable as guarantors.
13 Sept 2016

GOERTZEN v ALL TRAFFIC MANAGEMENT SERVICES LIMITED [2016] NZHC 2162

Citation

(2016) 18 NZCPR 309
Court

High Court

The High Court held the District Court was wrong to find an implied surrender; where the tenant never entered possession, the landlords' permitting the prior occupier to remain, a verbal comment in a broader conversation, and delay in invoicing did not amount to unequivocal conduct accepting surrender. Mere inaction or maintainence of the status quo is insufficient to effect surrender by operation of law. Appeal allowed and judgment for the Trustees entered.

New Zealand Case Law

WESTCITY NZ PTY LIMITED & ORS v FOX EARS LIMITED [2023] NZHC 1720

FREMA PROPERTIES LTD v SHELF COMPANY NO. 5 LTD [2020] NZHC 1994

LEE AND KERSLAKE v AIL INVESTMENTS LIMITED [2017] NZHC 661

GOERTZEN v ALL TRAFFIC MANAGEMENT SERVICES LIMITED [2016] NZHC 2162