Hope Resources Trust Board v Cole [2025] NZHC 1093 (8 May 2025)

Hope Resources Trust Board v Cole [2025] NZHC 1093 (8 May 2025) Home | Databases | WorldLII | Search | Feedback High Court of New Zealand Decisions You are here: NZLII >> Databases >> High Court of New Zealand Decisions >> 2025 >> [2025] NZHC 1093 Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help Hope Resources Trust Board v Cole [2025] NZHC 1093 (8 May 2025) Last Updated: 30 May 2025 IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE CIV-2025-442-18[2025] NZHC 1093 UNDER Sections 244, 245 and 251 of the Property Law Act 2007 IN THE MATTER of an application for orders cancelling deed of lease dated 1 August 2024 and an order for possession of the land BETWEEN HOPE RESOURCES TRUST BOARD Applicant AND MICHAEL COLE (ALSO KNOWN AS MIKE COLE) Respondent Hearing: On the papers Counsel: C R Osborne for Applicant Judgment: 8 May 2025 JUDGMENT OF RADICH J [1] On 4 March 2025, the applicant1 applied by originating application for: (a) An order that the deed of lease between it and Michael Cole be cancelled. (b) An order for possession of the land to which the lease relates. (c) An order that the respondent pay up rental arrears. An incorporated charitable trust board under Part 2 of the Charitable Trusts Act 1957 – the inclusion of the names of surviving trustees in the intitulment in previous documents in these proceedings is unnecessary. The applicant is named correctly in this decision. HOPE RESOURCES TRUST BOARD v COLE [2025] NZHC 1093 [8 May 2025] (d) Full costs and disbursements. (e) Interest on the rental arrears and on the costs and disbursements ordered by the Court. [2] The applicant is the registered proprietor of a property at 20 Polstead Road, Stoke, Nelson (the property).2 [3] The property was leased by the applicant to the respondent under a deed of lease dated 1 August 2024. [4] Under the lease, the annual rental is $18,200 per annum, payable monthly in advance but accepted for payment at the rate of $601.60 per week. [5] The respondent has missed rental payments consistently. The amount outstanding when the proceeding was filed is $11,430. The respondent made a weekly rental payment of $601.60 on 6 September 2024 and then again on 29 November and 6 December 2024. They are the only payments that have been made since September 2024. [6] On 18 December 2024, a notice of intention to cancel the lease under s 245 of the Property Law Act 2007 was served on the respondent, requiring payment of the then outstanding sum of $6,617.60. [7] The s 245 notice complied with the terms of that provision appropriately. It referred to the rental that was due, the action required to remedy the default, the consequences of default was not remedied and the right to apply to the Court for relief against cancellation under s 253 of the Property Law Act. [8] The breaches referred to in the notice were not remedied. [9] This application and the documents filed with it were served on the respondent on 26 March 2025. When the application was filed, on 4 March 2025, the rental 2 Lot 10 on DP 5196 being the land in the Register of Title NL126/10. arrears were $11,430.00. The respondent has taken no steps to oppose the application or to otherwise be involved with the proceeding. [10] Accordingly, when the case was called in the Judge’s Chambers List on 28 April 2025, the applicant sought the relevant orders. [11] The applicant has incurred legal costs and disbursements in issuing the s 245 notice and in pursuing this application. Under cl 6.1 of the deed of lease, to which this application relates, the applicant is entitled to the payment of those costs and disbursements on a solicitor-client basis. [12] And, under cls 5.1 and 5.2 of the deed of lease, interest on outstanding rental accrues at the rate of 12 per cent per annum. [13] Moreover, under s 251 of the Property Law Act, the Court, if it makes an order cancelling a lease, may order the lessee to pay rent up to the date of cancellation and to pay reasonable compensation for the breach. That compensation will include reimbursement of the lessor’s reasonable expenses. [14] It is appropriate now for the application to be granted. [15] As at 2 May 2025,3 the outstanding rental is $18,649.60. [16] Accordingly, I make the following orders under ss 244, 245 and 251 of the Property Law Act: (a) The 1 August 2024 deed of lease between the applicant and the respondent is cancelled. (b) The applicant is to have immediate possession of the property to which the lease relates at 20 Polstead Road, Stoke, Nelson. As set out in a memorandum of counsel of 2 May 2025 in response to the Court’s minute of 1 May 2025. (c) The respondent must pay the applicant the sum of $18,649.60 for outstanding rental as at 2 May 2025. (d) The respondent must pay to the applicant the sum of $693.64 being interest to 2 May 2025 at the rate of 12 per cent per annum under cls 5.1 and 5.2 of the deed of lease on each overdue payment of rent. (e) The respondent must pay to the applicant the applicant’s costs of and incidental to this proceeding on a solicitor-client basis as provided for in cl 6.1 of the deed of lease. The applicant is to file a schedule of its total solicitor-client costs for endorsement by the Court. Once endorsed, the final figure is to be included in any order for sealing. (f) The respondent must pay to the applicant the following disbursements: (i) $702 for the filing fees; and (ii) $65 for the sealing fee. (g) The respondent must pay to the applicant interest on all sums for which judgment is entered pursuant to s 10 of the Interest on Money Claims Act 2016 from the date of judgment to the date of payment. Radich J Solicitors: McFadden McMeeken Phillips, Nelson for Applicant NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.nzlii.org/nz/cases/NZHC/2025/1093.html