About the Author
Sarah Redding
Sarah graduated from the University of Otago with a Bachelor of Laws. She then worked as a graduate law clerk at the New Zealand Dispute Resolution Centre, and now is a solicitor at Kensington Swan.
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The Judge considered the challenge to be strongly arguable. She expressed support for the position that “premises” should be limited to physical premises and that the appropriate test should in essence be an assessment of whether something is “materially detrimental” to a tenant’s enjoyment of the premises.5 The Judge described the concept as encompassing things having a “nuisance impact.” This might include noise, smells, distracting lights, and potentially even businesses that attract disruption such as police attention or threatening customers. The Judge did not consider the proximity of a competing business would impact a tenant’s ability to enjoy the premises.
The Judge proceeded to lay out the reasons supporting this position. Firstly, such an interpretation would be consistent with the covenant of quiet enjoyment, which is implied into all leases. Secondly, cl 1.7 of the lease is under the heading “landlord’s works and handover date.” Thirdly, “material detriment” is not a term commonly used in the context of protecting a business from competition. Finally, cls 17.1 and 53 appeared to indicate there wasn’t intent for Hunting & Fishing to have control over the businesses to whom Pukeroa Properties chooses to lease premises.
All in all, the Judge found guideline (a) to favour granting leave for appeal.
Guideline (b): How the question arose before the arbitrators
Where a question of law arises incidentally during arbitration is quite distinct from where the proposed question of law was the very point of the arbitration. This guideline looks to hold parties to their choice where they have elected to submit a question of law to arbitration rather than to court. The Judge acknowledged guideline (b) is highly relevant to this case, and weighs against granting leave for appeal.
ReSolution | Mar 2020