The Portage Trust v Flagmakers Limited [2018] NZDC 11623

Published 17 April 2019

Reserved Judgment — Deed of Lease — Arbitration Act 1996 — claim of interest and costs for repairs post lease — Zurich Australian Insurance v Cognition Education (2015) 1 NZLR 383. The plaintiff sought an order for $49,601.78 (excluding GST) plus interest and costs for the costs incurred for repairs and maintenance to the building it leased to the defendant, per the terms of the lease. The defendant made an application for a stay of proceedings on the basis the plaintiff was in breach of the arbitration clause in the lease. The Deed of Lease was entered in August 2008. The defendant submitted that the only way to ascertain the amount payable, if any, is through a formal proceeding. The Judge ruled that in this case liability has not been established for the amount claimed by the plaintiff and a formal procedure will be required in order to do so, as the parties are contractually bound by the arbitration clause in the lease. The Judge ordered a stay of proceedings and restrained the plaintiff from continuing Court action. Costs were granted on a 2B basis to the defendant. Judgment Date: 12 June 2018.

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