district court logo

Kirkpatrick v Gobind [2022] NZDC 8820

Published 19 October 2022

Reserved judgment — breach of covenant — guarantor — lease assignment — Property Law Act 1952 — Ingram v Patcroft Properties Ltd [2011] 3 NZLR 433, [2011] NZSC 49 — Hirst v Vousden CA25/02, 20 June 2002 — Ingram v Patcroft Properties Ltd [2011] 3 NZLR 433, [2011] NZSC 49 — Prestige Motors Ltd v My Trustee Co Ltd (2021) 22 NZCPR 45, [2021] NZHC 237 — Parkhurst Corporation Ltd v Bisht [2021] NZHC 2888 — Link Technology 2000 Ltd (In Liq) v Peterland Ltd [2021] NZHC 428 — Foss v Harbottle (1843) 2 Hare 461, 67 ER 189 — Esso Petroleum Co Ltd v Mardon [1976] QB 801 (CA) — Ansin v R & D Evans Ltd [1982] 1 NZLR 184. The plaintiffs sought recovery of unpaid rent and other costs against the second defendant as guarantor under a lease assignment. The second defendant counter-claimed that the lease was unlawfully terminated and she therefore suffered a loss. She also counter-claimed damages for the unlawful taking and retention of vehicles. The plaintiffs were trustees of a trust which owned numerous commercial properties, one of which was leased to the third defendant company. The first defendant was sole director and shareholder of a company. That company assigned its lease to the third defendant company, of which the second defendant is sole shareholder and director. Both the first and third directors executed the assignments as guarantors. The third defendant fell into arrears on monthly rent. The issues for determination were whether the plaintiff had proven the amounts claimed as owing; and whether the second defendant had any successful counterclaim. The Court determined that the plaintiff had established the amounts for unpaid rent and outgoings, default interest and legal costs to date. The Court considered the second defendant's evidence regarding her counterclaims and relevant case law, and determined it would have needed to be the third defendant company which would have had to establish a loss and that the second defendant did not have a standing to bring a claim for damages against the plaintiff for losses to her company. The second defendant's counterclaim with regards to her vehicles also failed. The plaintiff was successful and was therefore entitled to costs, to be filed and served within 10 working days. Judgment Date: 18 May 2022.

Tags