Emery v Andrews HC Auckland CIV-2011-404-2903 [2011] NZHC 1805 (20 December 2011)

Last Updated: 27 December 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV-2011-404-2903}

UNDER section 244 of the Property Law Act 2007

BETWEEN KEITH RAYMOND LEONARD EMERY AND GILLIAN MENG CHONG EMERY Applicants

AND STEPHEN ROBERT ANDREWS AND ELENA NIKOLAEVNA ANDREWS Respondents

Hearing: 20 December 2011

Counsel: D Mitchell for Applicants

S H Barter for Respondents

Judgment: 20 December 2011

_{JUDGMENT OF BREWER J}

SOLICITORS

Turner Hopkins (Auckland) for Applicants

_{Barter & Co (Auckland) for Respondents}

EMERY V ANDREWS HC AK CIV-2011-404-2903 20 December 2011

[1] By interlocutory application for judgment for possession dated 16 December

2011, the applicants apply for various orders relating to land known as 6 Lewis Lane, Coatesville, Auckland.

[2] This application is against a quite lengthy history. By oral judgment of 8 July

2011, Venning J permitted the respondents to remain in occupation of the land subject to a number of conditions. One of those conditions was that the respondents bring arrears of occupation licence fees up to date and thereafter keep them up to date. His Honour reserved leave to the applicants to apply for further orders on

24 hours notice if the respondents failed to comply with any of the conditions.

[3] The current application, coupled with the affidavit of Keith Raymond Leonard Emery sworn on 16 December 2011, establishes that the respondents are in breach of one of the conditions ordered by Venning J, namely a failure to pay the December occupation fee.

[4] In the affidavit, Mr Emery deposes that the property seems to have been abandoned by the respondents. He also deposes that Mr Andrews, one of the respondents, is a director of a company which on 17 November 2011 was placed into liquidation. The liquidator’s first report dated 30 November 2011, a copy of which is annexed to the affidavit, records that the liabilities are in excess of the assets. Further, Mr Emery deposes that the property itself is falling into a state of disrepair.

[5] There is an associated proceeding in this Court – CIV-2011-404-4317. In this proceeding the respondents as plaintiffs seek specific performance of an agreement for sale and purchase between the applicants as vendors and the respondents as purchasers. However, that is not a matter which I have to consider today because the judgment of Venning J was in respect of a licence to occupy and what is sought by the applicants today is an order for possession based on non-compliance with the licence to occupy.

[6] The respondents are represented before me today by Mr Barter. Mr Barter had previously filed a memorandum seeking leave to withdraw as counsel for the respondents. However, he has appeared today and does not seek formal leave to

withdraw. He has advised me that the respondents have received the application I am dealing with today. They are aware of it. However, they have given Mr Barter no instructions on the application. Therefore, although he appears as counsel, he can take no further part in the proceeding.

[7] I note in passing that an affidavit of service of Jennifer Anne Matthews sworn on 19 December 2011 has been filed in the Court. It does establish that service on Mr Barter’s office has been duly made and, of course, Mr Barter has now confirmed that knowledge of the application was passed by his firm to his clients.

[8] Under these circumstances I am prepared to grant the application as follows:

(a) An order in favour of the applicants is made for possession of the land known as 6 Lewis Lane, Coatesville, Auckland, comprised in Identifier NA130A/884;

(b) As a consequence, the respondents’ licence to occupy the land dated

11 August 2009 is at an end and of no further effect;

(c) The respondents remain liable to pay the occupation fee for the land up to the present date;

(d) The applicants are entitled to costs on this application and I direct that they be assessed and paid on a 2B basis.

Brewer J