Westcity NZ PTY Ltd v Snow 2019 NZDC 11195

Published 08 August 2019

Summary judgment — lease agreement — mitigation of losses — jointly and severally liable — arbitration — Pemberton v Chappell [1987] 1 NZLR 1 — Boyer v Warbey [1952] 1 QB 234. The plaintiffs sought summary judgment against five defendants for rent arrears, installations and de-fit costs, accumulated interest and solicitor costs. The fourth and fifth defendants leased a shop within a mall. They subsequently assigned their lease to the first defendant, although remained liable to the lessor for their obligations under the lease. The plaintiffs later acquired the mall from the prior owner and the defendants fell into arrears of the rental and ultimately had their lease cancelled. The total claim was for $282,835.80 which was not in dispute. The third defendant raised three potential defences to the claim, but the Judge concluded that the lease agreement precluded the first two claims and that a potential defence raised claiming that the disputes should be referred to arbitration was not appropriate as there were no valid disputes to arbitrate. The third potential defence claim, concerning the plaintiff's failure to mitigate their losses, failed on the basis that there is no obligation for a lessor to mitigate loss where a lease remains in force. Summary judgment was granted against all five defendants jointly and severally for $263,984.50, plus solicitor costs. Judgment Date: 14 June 2019.