New Zealand Case Law: Decisions & Judgments

Topic

Lease variation

Legal area

Court

23 Nov 2018

RED BOND LTD v FORMATION HOLDINGS LTD [2018] NZHC 3053

Citation

[2018] NZHC 3053
Court

High Court

The parties, by email and correspondence culminating in the solicitor's email of 17 July 2018, agreed Red Bond could resume possession provided it vacated no later than the end of the October 2018 school holidays; that agreement removed any serious question to be tried and, given Red Bond's payment history and solvency concerns, the balance of convenience and overall justice favoured the defendant, so the interim injunction was refused (with FHL undertaking not to remove or re‑let until after 30 November 2018).
27 Oct 2015

GREYS AVENUE INVESTMENTS LIMITED v NEW ZEALAND MINT LIMITED

Citation

openlaw-f9a2057b_783a_4692_9056_e27f7e5a1e4c.pdf
Court

High Court

Where the creditor's position as creditor for the amount in the statutory demand has been vindicated by repayment through lawful deductions under the lease, withdrawal of the demand does not indicate creditor failure and costs on the setting aside application are not payable by the creditor; costs on the costs application are awarded to the successful party in respect of that application.
2 Feb 2015

W & G SPORTS LIMITED v BATCHELAR CENTRE LIMITED [2015] NZHC 179

Citation

[2015] NZHC 179
Court

High Court

The application to set aside the statutory demand succeeds because W & G demonstrated a genuine and substantial dispute as to whether the debt was owing: special condition (4) of the November 2013 Agreement to Lease is ambiguous as to which lease terms would apply if BCL failed to acquire No.33, and factual conflicts about the parties' intentions and conditions cannot be conclusively resolved on affidavit; accordingly the statutory demand is set aside.
3 Apr 2012

CUNNINGHAM V BUTTERFIELD & ORS HC TIM CIV 2011-476-000400

Citation

openlaw-4a2328c0_b5ac_4f4c_ae44_252998da3831.pdf
Court

High Court

The plaintiff breached clause 6 of the Settlement Deed by failing to destock the Mt Cook paddocks as required; the April 2010 variation and December 2010 Settlement Deed operated as a surrender and regrant creating enforceable conditions which allowed cancellation under the Property Law Act 2007, but the notices, while imperfect, were not invalid and, on discretionary grounds (proportionality, conduct, lack of lasting damage and plaintiff's efforts), the court grants relief from forfeiture to the plaintiff.
7 May 2010

COLIN DENNIS ADAMS AND RICHARD NEIL ADAMS AND THE E W PARKER TRUSTEE COMPANY LIMITED V TOUCHTWO LIMITED AND ORS HC AK CIV-2009-404-5274

Citation

openlaw-dc48456f_7e84_41ed_aeaf_9841fd43179f.pdf
Court

High Court

The 30 June 2006 Deed of Variation extending the lease term produced the legal fiction of surrender by operation of law and a regrant of a new lease to BFS; the plaintiffs failed to discharge the standard required to displace that fiction and there are contested factual issues (intent, estoppel, mistake, mitigation) that preclude summary judgment for either side, so both summary judgment applications are dismissed.
19 Nov 2007

TENNYSON MOTOR INN (2003) LIMITED V JS & DM WALLACE HC NAP CIV 2007-441-739

Citation

openlaw-02644d4c_94ab_4cfc_b351_f0efe8d852aa.pdf
Court

High Court

The Court held there was no substantial dispute under s290(4)(a) because the written lease governed, the alleged oral variation was ineffective as the lease required written variation, the conduct alleged was at best indulgence or annual waiver rather than binding variation, part performance and estoppel were not established, and therefore the statutory demand could not be set aside.

New Zealand Case Law

RED BOND LTD v FORMATION HOLDINGS LTD [2018] NZHC 3053

GREYS AVENUE INVESTMENTS LIMITED v NEW ZEALAND MINT LIMITED

W & G SPORTS LIMITED v BATCHELAR CENTRE LIMITED [2015] NZHC 179

CUNNINGHAM V BUTTERFIELD & ORS HC TIM CIV 2011-476-000400

COLIN DENNIS ADAMS AND RICHARD NEIL ADAMS AND THE E W PARKER TRUSTEE COMPANY LIMITED V TOUCHTWO LIMITED AND ORS HC AK CIV-2009-404-5274

TENNYSON MOTOR INN (2003) LIMITED V JS & DM WALLACE HC NAP CIV 2007-441-739