Harnish v Kauvai [1985] CKHC 4; Plaint 23.1985 (30 August 1985)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

Plaint No. 23/85

BETWEEN

ROBERT WILLS HARNISH
of Ngatangiia, Company Director
Plaintiff

AND

PUI KAUVAI, JOHN KAUVAI, MOKOROA KAUVAI, and
TE ARO KAUVAI (By her attorney MOKOROA KAUVAI)
all of Rarotonga, landowners of Part Section 12C, MAII.
Defendants

DATE OF HEARING:

Counsel: McFadzien for Plaintiff
Mrs Tina Kauvai for the Defendants

Decision: 30th August, 1985

JUDGMENT OF ROPER J.

In this action the Plaintiff seeks an order that he is entitled to assign to Emandy Holdings Limited a sublease over land owned by the Defendants or in the alternative an order that the Defendants specifically grant consent to the assignment by executing to the. Plaintiff such consent in writing and do all that is necessary to put the Plaintiff in possession of such. This application is a matter of some urgency as the Plaintiff is leaving Rarotonga on 7 September to live permanently in New Zealand and it was for this reason that an exigency fixture was granted. The sublease in question contains the usual covenant that –

"The Sublessee shall not assign, sublet or otherwise part with the possession of the demised premises or any part thereof save with the written consent first had and obtained of the native landowners for the time being of the demised premises"

and the agreement for sale and purchase to Emandy Holdings is subject to the Plaintiff obtaining the consent of the Defendant landowners. In the belief that Clarkes acted for the owners the Plaintiff’s Solicitors wrote to them requesting them to obtain the landowners consent. It transpired that Clarkes did not act for the landowners but a letter from the landowners was received by the Plaintiff’s Solicitors in which consent was refused on these grounds:-

"1. Us landowners were not informed of the transactions.

2. We understand that a clause in the head lease says that the lessee shall not assign, sublease, transfer this lease without the consent of the landowners."

The law is very clear that a landowners consent to an assignment of lease or sublease cannot be unreasonably withheld. In the present case the only basis for refusing consent seems to be that consent is required and that makes no sense at all. Mrs Tina Kauvai has appeared to represent the Defendants and has said everything that can possibly be said on their behalf. She now says that the landowners would consent to the assignment if they were paid some money for so doing. That is the first time that matter has been raised. The Plaintiff Mr Harnish is not prepared to pay. Although I can understand the landowners attitude it is impossible to say as a matter of law that the Defendants demand for money is a reasonable ground for refusing consent.

I record at the request of Mr McFadzien that Mr McKegg who will in the future be residing in the house on the land looks forward to a happy relationship with the Defendants and is prepared to discuss any problems that may arise in the future.

I think it appropriate that orders be made in terms of both orders sought in the Statement of Claim and I so order. Mr McFadzien sought no order for costs and none is made. There will be an order for the release of the Deed of Sublease produced as an Exhibit.