Palmerston North City Council v Birch [2012] NZHC 3202 (29 November 2012)

Last Updated: 13 January 2013

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2012-454-670 [2012] NZHC 3202

BETWEEN PALMERSTON NORTH CITY COUNCIL Plaintiff

AND VANYA BIRCH First Defendant

AND RICHARD BERGHUIS Second Defendant

AND APRIL SUN ON CUBA LIMITED Third Defendant

AND VANYA BIRCH Fourth Defendant

Hearing: 29 November 2012

(Heard at Palmerston North)

Counsel: J. Maasen - Counsel for Plaintiff

V.M. Birch - Defendant

Decision: 29 November 2012

_{ORAL DECISION OF ASSOCIATE JUDGE D.I. GENDALL}

_{Solicitors: Cooper Rapley, Lawyers, PO Box 1945, Palmerston North}

PALMERSTON NORTH CITY COUNCIL V V BIRCH HC PMN CIV-2012-454-670 [29 November 2012]

[1] Before the Court is an application by the defendants seeking an order staying the execution of a judgment I gave in this proceeding dated 13 November 2012. This judgment granted an order for possession to the plaintiff over the property at

107, 107A and 107B Cuba Street, Palmerston North and required the defendants to vacate the property by 4.00 pm on 27 November 2012.

[2] The application for stay was filed by the defendants on 22 November 2012.

[3] This application was opposed by the plaintiff in a Notice of Opposition filed

28 November 2012.

[4] In the meantime and with the consent of the plaintiff, the time for the defendants to vacate and deliver up possession of the property to the plaintiff was extended to 4.00 pm tomorrow, 30 November 2012.

[5] Today, I have heard argument on the stay application on behalf of the defendants by Ms Birch (the first and fourth defendant) and by Mr Maasen on behalf of the plaintiff.

[6] At the conclusion of that argument, which focused not only on r 17.29 High

Court Rules relied upon by the defendants in their application, but also on r 20.10

High Court Rules (which was carefully addressed by Mr Maasen for the plaintiff), I put to counsel for the plaintiff and the defendants a possible scenario. This was to the effect that a possible stay of this proceeding might be contemplated on the basis that some form of security was provided by the defendants and in addition certain imposed conditions met.

[7] In that regard, the plaintiff, in my view helpfully, put forward as a proposition that it might be prepared to contemplate a stay if the defendants were able to confirm that they could meet the following conditions:

(a) Payment of $5,000.00 by way of back rent for the premises within the next 48 hours.

(b) Provision of a bond for up to $15,000.00 for payment of future rent, this bond to be provided also within the next 48 hours.

(c) The defendants entering into a lease of the commercial portion of the property on the standard Auckland District Law Society lease form terms, this lease to be for a term expiring on delivery of the Court of Appeal decision and to be at a rental to be set by an independent registered valuer.

(d) In addition to rent, the defendants as tenants would pay a pro-rata contribution to operating costs for the premises for their period of occupation.

(e) The defendants would enter into a commitment that no fixtures or fittings would be removed from the premises without the consent of the plaintiff.

[8] Having adjourned this matter at 1.30 pm today for some thirty minutes to enable the defendants to consider and take some instructions on whether or not these conditions might be met, when the Court reconvened at 2.00 pm, Ms Birch on behalf of the defendants stated that regrettably they would be unable to meet those suggested conditions.

[9] That said, the position with the current application before me appears clear. Although the refusal of the stay sought by the defendants may well necessarily here mean that their appeal to the Court of Appeal against the earlier judgment of this Court will be rendered nugatory, the failure by the defendants to offer or put forward any reasonable conditions or security for such a stay (and in this regard the conditions advanced by Mr Maasen for the plaintiff noted at [7] above I consider under all the circumstances here not to be unreasonable) must mean that the stay sought by the defendants should be refused.

[10] In saying that, I note in passing that as long ago as July or August 2012 the plaintiff (after attempts to negotiate a new lease of the premises with the defendants

which it was offering at the time but which attempts were by the defendants) had indicated to the defendants that they required possession of the premises. At no time since has any attempt been made by the defendants to provide that possession to the plaintiff which is the registered proprietor of the property having purchased it at mortgagee sale.

[11] There is urgency required in this matter. For detailed reasons I will outline subsequent to this decision, I now find that the application for a stay before the Court must be refused.

[12] That application is dismissed. [13] Costs are reserved.

[14] My more detailed reasons for this decision will follow.

[15] For the avoidance of doubt, the earlier order made in this Court for the defendants to vacate and deliver up vacant possession of the properties at 107, 107A and 107B Cuba Street, Palmerston North is amended slightly so that this is now required to take place by 4.00 pm tomorrow, 30 November 2012.

‘Associate Judge D.I. Gendall’