Liquidator rejects free palm bid
Businessmen wanted to give away $8000 plants after court case
The liquidator of an embattled Onehunga palm company says plants valued at an average $8000 each cannot be given away because they are now under his control.
Andrew McKay of BDO said assets of Oceanic Palms were not under the control of the men who previously ran the business.
“They’re the assets of the company and we will be dealing with them accordingly. The plants are secured in a yard which they can’t get into because they’ve been locked out so they can’t get to the trees to give them away,” McKay said.
His comments follow statements from the two men who lost three court battles against their landlord KiwiRail. They said they wanted to give away palms — but KiwiRail also says the men are barred from giving away any plants on its land.
Brent Hubbard and Harley Haynes of Oceanic Palms said 130 plants were still on the site — land they rented from KiwiRail for years — but they now want councils, botanic gardens or other organisations to take them. Hubbard said they had already given away about 35 of their plants but 130 palms around 2-5m high had an average market value of $8000. Their free palm offer ends a long-running saga where the men who represented themselves in court lost at each round.
On October 6, the Supreme Court rejected Peter Brent Home Hubbard, Harley Haynes and Oceanic Palms’ attempt at action against KiwiRail. The palm men wanted to challenge a Court of Appeal decision which they lost last year. The Supreme Court said no because there was nothing to suggest the appeal court’s decision was wrong.
Oceanic had operated its business from the 4985sq m leased site of nearly half a hectare at 44a Alfred St, the court said, although Hubbard said they had initially leased a smaller plot in 2000. KiwiRail sought a rent raise in 2014 because the men were paying below the market rate. It gave them notice in 2014, the Supreme Court said, seeking $123,200 annually.
Each side engaged valuers and after consultation, they said the rent should be $100,000 a year. The palm men rejected that and wanted to pay their original rent.
The Court of Appeal said the men initially got the land rent-free in 2009 for the first three months. In fact, in a reverse landlord-tenant relationship,
Anne Gibson
KiwiRail actually had paid the men $20,399 for work they did to the Onehunga site, including cutting down trees and putting up fences, the court noted.
By 2010, the rent was struck at $34,300/year but at that rate, KiwiRail said it was “not the current market rent and there is a concession granted to Oceanic Palms”. The rent rose to $37,502 a year in 2013. A year later, KiwiRail said it had determined the market rent was $123,200/year then gave notice in September 2015 it intended to cancel the lease.
The palm men went to the High Court in 2016, asking Justice Fogarty to prevent the rent rising by more than 50 per cent. The Supreme Court summed up that case.
“The High Court rejected Oceanic’s application for relief against forfeiture of the lease but Oceanic was given an opportunity to avoid cancellation of the lease by, within one calendar month from the date of delivery of the judgment, paying KiwiRail the arrears of rent and disputing the rent formally so that it could be submitted to arbitration. Oceanic took neither of these steps,” it said.
Hubbard told the Herald: “Regardless of the right or wrongs of the purported debt and the contract, we are offering to give away a substantial quantity of palms to botanic gardens and councils around the country.
“The plants represent the end products of half a lifetime’s work in growing. We have had many of them for 20 years, some are much older than that.”
The men said they would seek a judicial review of their situation.
Kate Jorgensen, KiwiRail chief financial officer, said the enterprise was “owed approximately $240,000 by Oceanic Palms after the business failed to pay its lease on commercial land in Onehunga. We have been
The plants represent the end products of half a lifetime’s work in growing.
Brent Hubbard
through several legal processes to retrieve this debt. Last year the Court of Appeal noted: ‘KiwiRail demonstrated considerable patience in allowing Oceanic Palms to continue in occupation for many years despite non-payment of any increased rental from 1 March 2015’.”
Jorgensen said KiwiRail had tried every avenue to resolve the issue.
This week, the High Court ordered the liquidation of Oceanic Palms and appointed Andrew McKay and Andrew Bethell of BDO in Auckland, she said.