Waikato District Council v Singh [2015] NZHC 3147 (10 December 2015)

Last Updated: 15 December 2015

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-348 [2015] NZHC 3147

IN THE MATTER	of an application for an order for possession of land under s 244 of the Property Law Act 2007
BETWEEN	WAIKATO DISTRICT COUNCIL Applicant
AND	CHUHAR SINGH AND AMRO SINGH Respondents

Hearing:	On the Papers
Appearances:	P Moodley for Applicant D J Taylor for Respondents
Judgment:	10 December 2015

_{JUDGMENT (No.2) OF WHATA J}

This judgment was delivered by Justice Whata on

10 December 2015 at 3.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

_Date:

Solicitors:

Brookfields, Auckland

Kellaways, Hamilton

Counsel:

D J Taylor, Hamilton

WAIKATO DISTRICT COUNCIL v SINGH [2015] NZHC 3147 [10 December 2015]

Relief from cancellation orders

[1] In my judgment of 16 September 2015¹ I granted relief from cancellation subject to the following conditions:

(a) The Singhs shall have completed all the requisite physical works within 60 working days of obtaining any required building consent.

(b) The Singhs shall have approved by Mr Graham or other suitably qualified expert, a pool operational plan that conforms to the NZS

5826:2010 standard prior to the reopening of the facility to the public.

(c) In the meantime, the Singhs must continue to pay rental and all other outgoings under the lease and to comply with all obligations as tenant under the lease.

[2] I reserved leave to the parties to provide submissions on the precise wording of the proposed conditions within five working days.

[3] In response to my directions, I received detailed memoranda including updating the Court as to the position reached some months after my judgment. I issued a minute reminding the parties of the limited scope for which I granted leave to make submissions, namely on the precise wording of the orders as set out at paragraph [63].

[4] I have now received what I directed the parties to provide, namely a draft form of the orders.

[5] There was one point of disagreement. The applicant requested that a condition 3 be inserted as follows:

3. The pools are not to be reopened until: (a) the physical works are completed;

_{(b) both plans are duly approved;}

¹ Waikato District Council v Singh [2015] NZHC 2233.

(c) with such completion and approval to be confirmed by the experts who signed the joint statement dated 21 August 2015; and

(d) the respondents apply for Pool Safe accreditation.

[6] I accept the objective of the proposed condition, but I am concerned that the requirement for expert consensus runs the risk of undue delay. I therefore grant leave of the parties to seek the assistance of the Court if expert approval cannot be obtained within 30 days of the request to provide that approval.

[7] Accordingly, I make a final order in terms of Annexure A.

Costs

[8] Ordinarily in cases where relief against cancellation has been granted, a costs award is made against the party obtaining the indulgence.² I do not propose to depart from this orthodoxy save in one respect; I consider that the costs in favour of the lessor should be discounted by 25 percent to take into account an unduly pedantic approach taken to the remedial process. While steps taken in advance of litigation are not normally factored into a cost award, I consider that this course properly reflects the extent to which the lessors contributed to the need for the litigation.

[9] I note Mr Taylor’s strong submission that in his view the proceedings arose from the Council’s improper conduct towards the lessees, including the unhelpful approach taken by the Council towards consenting and the blunderbuss approach taken to the Property Law Act notice. He further submits that, in short, the Council’s conduct has been oppressive and has had the effect of keeping the respondents in breach and therefore creating the jurisdiction for the Council to seek an order that it did seek, but on which it failed.

[10] While I have some sympathy for the respondents, in reality they failed to comply with the lease requirements over a lengthy period (and appear continue to do

2. Cunningham v Butterfield [2014] NZCA 213, (2014) 22 PRNZ 521, Roses are Red Ltd v Board of Administration of the Methodist Church of New Zealand [2009] NZCA 237, (2009) 19 PRNZ

369.

so). In those circumstances, relief from cancellation was still an indulgence afforded to them. I accept, however, that the discount of 25 percent is required to reflect at least in part, the matters raised by Mr Taylor.

_{Annexure A}

CONDITIONS OF RELIEF FROM CANCELLATION

1. The respondents will complete the physical works required to the Waingaro Hot Springs facility as set out in the joint statement of experts dated the 21st of August 2015 (“the Experts’ Statement”) within sixty working days of obtaining any required building consent. The physical works are:

(a) At the number two unit motel block – flashings to prevent water entering the building envelope where the chimney was removed.

(b) At the hot water bore – secure the fencing to the block wall structure and the pressure vessel inside the shed to the floor. Mr Mark Mitchell to prepare the bracing calculations to confirm the cantilevering piles are adequate to brace the shed.

(c) At the reception kiosk – the pre cast concrete floor slabs are to be securely connected to the block wall structure using steel connection angles and bolts.

(d) At the spa pools – the timber barrier walls do not all have adequate support posts and those that do not will need to be upgraded.

(e) At the hydro slide pump room – to prevent surface water run off flowing into the pump room on the north eastern side of the building a drain is to be provided to intercept the surface water runoff and direct it into the storm water system.

(f) At the pool filter enclosure – nail fixing holes in the roof of this facility are to be filled with a sealant to prevent rainwater ingress.

(g) Concrete steps to caravan park – overhead power cables pass to close

to the ground at a location in an area accessible to the public, the power lines are to be raised to the required minimum height.

(h) Timber steps – the new timber steps are to have an anti slip surface provided to the treads such as geogrid.

(i) The sand filters for the main pool and spa pools are to be replaced.

(j) The pool plumbing and pipe routing is to be adjusted according to a plan prepared by Mark Mitchell to provide for:

(i) pre-chlorination of geothermal water; and

(ii) discharge of geothermal spring water into the main pool balance tank to provide some chlorine contact time and premixing to reduce the water temperature before the water is fed into all pools including the toddlers’ pool.

2. The respondents are to prepare new risk management plans and water quality plans both in conformity with NZS 5826:2010 the plans are to be approved by a suitably qualified expert. The plans are to cover inter alia:

(a) The risk of stream water entering the pools at times of high flood.

(b) The risk of stream water entering the wet well chamber at the spring at times of high flood.

(c) The need to reinstate cyanuric acid dosing if the period of exposure to sunlight prior to pool waters being discharged to the local stream is for a period longer than twelve hours.

(d) All sand filters to be opened and inspected on an annual basis and the condition of the sand investigated by a suitably qualified and experienced professional.

(e) The water sampling programme and the calibration of any equipment used for undertaking analysis.

(f) The pool manager must be trained and have undertaken a pool operation training or refresher course within the past ten years.

3. The pools are not to be reopened until:

(a) the physical works are completed; (b) both plans are duly approved;

(c) with such completion and approval to be confirmed by the experts who signed the joint statement dated 21 August 2015; and

(d) the respondents apply for Pool Safe accreditation.

4. The parties have leave to seek the assistance of the Court in the event that the experts are unable to provide approval within 30 days of being requested in writing to provide such approval.

5. The respondents are to pay all rental and other outgoings under the lease and to comply with all obligations as tenant under the lease whether the pools are open or not.