Ponsonby 235 Limited v Matariki Ponsonby Limited

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-001276

[2021] NZHC 1809

UNDER Part 19 of the High Court Rules 2016

BETWEEN

PONSONBY 235 LIMITED

Plaintiff

AND

MATARIKI PONSONBY LIMITED

Defendant

Hearing: on the papers

Counsel:

G Sidnam for the Applicant

Judgment:

16 July 2021

JUDGMENT OF VAN BOHEMEN J

[For leave to commence proceeding by originating application]

This judgment was delivered by me on 16 July 2021 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors
Anderson Creagh Lai, Auckland

PONSONBY 235 LIMITED v MATARIKI PONSONBY LIMITED [2021] NZHC 1809 [16 July 2021]

Introduction

[1] The applicant, Ponsonby 235 Ltd, applies without notice for permission to commence a proceeding by originating application. As required by r 19.5(3) of the High Court Rules 2016, the proposed originating application is filed with the application for permission. Ponsonby 235 seeks an order appointing an arbitrator to determine rental payable under a lease that Ponsonby holds from Matariki Ponsonby Ltd of premises at 235 Ponsonby Road (the Property).

[2] The application for permission states that the proceeding is straightforward, namely the appointment of an arbitrator, and that the evidence before the Court is likely to be confined to uncontested matters establishing the lack of the parties’ agreement to appoint an arbitrator by consent. The application says that, given these matters, it would be offensive to the just, speedy and inexpensive determination of the issues to require the parties to file particularised proceedings and undertake discovery.

Relevant background

[3] In an affidavit dated 13 July 2021, Mr Creagh, the sole director of Ponsonby 235, provides a copy of the lease, explains the steps taken by the parties in accordance with the lease to agree on a new rental for the Property, including the appointment by each party of expert valuers, and the steps taken by Ponsonby 235 to appoint an arbitrator after the parties were unable to agree on a new rental.

Discussion

[4] As Asher J said in Hong Kong & Shanghai Banking Corporation v Erceg after reviewing relevant decisions on applications to commence proceedings by originating application:1
[25] These cases show that the type of proceeding suited to the originating application procedure is a straightforward application, not requiring detailed pleadings or interlocutory orders for its fair resolution. Such a type of proceeding tends to be an application under a specific statutory provision, where the issue that arises can be clearly defined, and the issues confined. The procedure is not well suited to the determination of substantive rights

1 Hong Kong & Shanghai Banking Corporation v Erceg (2010) 20 PRNZ 652 (HC); see also Solar Bright Ltd v Martin [2019] NZHC 300 at [20] – [24].

involving the application of common law doctrines as distinct from statutory tests. It is not well suited to cases involving multiple parties, and cases where there is the possibility of cross-claims or counterclaims.

[5] I am satisfied that the current proceeding falls within the class of cases described by Asher J as suited to the originating application procedure. The lease provides for the appointment of an arbitrator in the event the parties are not able to agree on a revised rental following consultations by the expert valuers. The principal issue likely to be in contention is whether Ponsonby 235 can demonstrate that the provisions of the lease giving rise to the right to appoint an arbitrator have been met. That is a confined issue and is unlikely to require detailed pleadings or extensive evidence.

[6] In these circumstances, I am satisfied that it is in the interests of justice for the proposed proceeding to commence by way of originating application.

Result

[7] I grant Ponsonby 235’s application for permission to commence the proposed proceeding by originating application.

G J van Bohemen J

The case of Ponsonby 235 Limited v Matariki Ponsonby Limited was brought before the High Court of New Zealand, Auckland Registry. The plaintiff, Ponsonby 235 Limited, sought permission to commence proceedings via an originating application for the appointment of an arbitrator to determine the rental payable under a lease agreement with the defendant, Matariki Ponsonby Limited. The property in question was located at 235 Ponsonby Road. The application was made without notice and accompanied by the proposed originating application as required by the High Court Rules 2016.

The legal issues at the heart of this case revolved around the interpretation of the lease agreement between the parties and the procedural appropriateness of commencing the proceeding by an originating application rather than through more formal pleadings. Specifically, the court had to consider whether the straightforward nature of the application, focusing on the appointment of an arbitrator, justified the use of the originating application procedure. The court also needed to assess whether the proceeding could be resolved fairly without detailed pleadings or extensive evidence, in line with the principles outlined in previous case law.

In granting the application, Justice van Bohemen determined that the proceeding was indeed straightforward and confined to the issue of arbitrator appointment, as mandated by the lease. The court found that the proceeding did not require detailed pleadings or extensive evidence and was more aligned with a statutory provision than the application of common law doctrines. The decision referenced previous judgments which emphasised that the originating application procedure is suited to straightforward applications where issues can be clearly defined and are confined in scope. The court concluded that proceeding by way of an originating application was in the interests of justice, allowing for a just, speedy, and inexpensive resolution of the matter.

Accordingly, the court granted Ponsonby 235 Limited’s application for permission to commence the proceeding by originating application. The final orders would permit Ponsonby 235 Limited to appoint an arbitrator to determine the rental payable under the lease, following the procedural framework set out in the originating application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	on the papers
Counsel:	G Sidnam for the Applicant
Judgment:	16 July 2021