Aokautere Land Holdings Limited v Palmerston North City Council

[2020] NZHC 873

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2020-454-24

[2020] NZHC 873

BETWEEN

AOKAUTERE LAND HOLDINGS LIMITED

Applicant

AND

PALMERSTON NORTH CITY COUNCIL

Respondent

On the papers:
Counsel:	G J Woollaston for Applicant
Judgment:	1 May 2020

JUDGMENT OF CHURCHMAN J

Application

[1]                 By interlocutory application filed on 30 April 2020, the applicant has applied, without notice, for an interim injunction.

[2]                 The applicant seeks to injunct the Palmerston North City Council (PNCC) from proceeding with any further hearings or related steps in relation to a designation set out in a Notice of Requirement dated 18 December 2019 pending further order of the Court.

[3]                 The grounds upon which the order is sought is that there is that there is a serious issue that the Notice of Requirement process was invalid. The applicant asserts that “…absent intervention via urgent relief the Plaintiff’s rights entitlements and interest as registered proprietor of the subject land will be improperly impinged upon”. It is also alleged that damages would not be an adequate remedy if the respondent is not

AOKAUTERE LAND HOLDINGS LIMITED v PALMERSTON NORTH CITY COUNCIL [2020] NZHC 873 [1 May 2020]

restrained from conducting the hearing relating to the Notice of Requirement and that requiring the applicant to proceed on notice would cause undue delay and prejudice.

[4]                 Accompanying the application was a draft statement of claim which has not yet been filed, an affidavit in support of Leslie William Fugle dated 30 April 2020, a memorandum pursuant to High Court Rule 7.23(3) and an undertaking as to damages signed on behalf of the applicant by L Fugle.

Facts

[5]                 The applicant is a property development company with a registered office in Palmerston North.

[6]                 It owns land within the territorial jurisdiction of the PNCC with the record of title no. 895646.

[7]The title contains two lots, Lot 2 DP484516 and Lot 1102 DP519561.

[8]                 The applicant has applied to the respondent for resource consent in respect of a subdivision to create six residential lots on Lot 2 DP484516.

[9]                 After the applicant had  lodged  its  resource  consent,  the  respondent,  on  18 December 2019, issued a Notice of Requirement which sought to create a public road over part of the applicant’s land in respect of which it had applied for a resource consent to subdivide.

[10]             The applicant says that the notice was invalid because there was an error in the description of the legal title to its land and that the notice was not served at the registered office of the applicant.

[11]             The applicant acknowledges receiving a copy of the Notice of Requirement on or about 30 January 2020 via its solicitors.

[12]             The applicant further contends that no copy of the Notice of Requirement was served on the holder of the registered first mortgage over the land.

[13]             The applicant’s resource consent application has been heard and a decision is awaited. The applicant participated in that hearing and sought to have the issue of the validity of the Notice of Requirement determined as part of the subdivision resource consent process. The consent hearing panel declined that request on the basis that it was effectively a “collateral challenge” which should properly be determined by the Independent Hearings Commissioner (IHC) that had been appointed for the purpose of determining the Notice of Requirement itself.

[14]             The applicant also sought the IHC appointed by the respondent to consider the Notice of Requirement to rule on the validity of the notice.

[15]             On 17 April 2020, the IHC declined to do that.  The IHC, in the minute of   17 April 2020, indicated that the substantive hearing was likely to be held in late May 2020.

[16]             The applicant has not taken any steps to judicially review the decision of the IHC.

[17]             The applicant has asserted that the declining of jurisdiction by the IHC has “…effectively left (the applicant) with no recourse, other than to pursue urgent relief in the High Court.”

[18]             In respect of the urgency said to justify the without notice application, the applicant has claimed:

…while all prejudice which may flow from the purported confirmation of the NOR, will continue to be furthered via the panel hearing process established by PNCC, any potential recourse/means of obviating that prejudice at panel level is now lost to the plaintiff.

The law on without notice interim injunction applications

[19]             Rule 7.53 of the High Court Rules 2016 (HCR) sets out the requirements for an interlocutory injunction seeking interim relief. It confirms that an application for an interlocutory injunction can be made before or after the commencement of the hearing of a proceeding but that an application for an interlocutory injunction made

before the commencement of a proceeding should not be made except in case of urgency.

[20]             HCR 7.54 requires an applicant for an interim injunction to file a signed undertaking that they will comply with any order for the payment of damages to compensate the other party for any damage sustained as a result of the issue of an injunction.

[21]             Pursuant to HCR 7.23, any interlocutory application that is without notice must use Form G32 of the High Court Rules 2016 which requires the grounds on which each order is sought to be set out in an accompanying memorandum.

[22]             HCR 7.23 also sets out the requirements as to when an interlocutory application without notice can be made. This includes the ground that “requiring the applicant to proceed on notice would cause undue delay or prejudice to the applicant”.

[23]             HCR 7.23(3) also requires that a memorandum must be filed with the interlocutory application and that this memorandum must include the background to the proceeding, grounds on which each order is sought, an explanation for those grounds and relevant information for the application known by the applicant. The applicant has filed such a memorandum.

[24]             Counsel are required to be especially mindful of their obligations in giving the certificate required by HCR 7.23 as following Sealink Ltd v Tranzpacific Containers Services Ltd,1 the Judge is entitled to rely on counsel’s memorandum as certified in accordance with the rules.

[25]             In relation to the specific requirement of urgency, the Court of Appeal has recently provided some direction on how urgent interlocutory applications for interim relief under HCR 7.23 should be approached in the case of Commerce Commission v Viagogo AG:2

1      Sealink Ltd v Tranzpacific Containers Services Ltd (1982) 1 PRNZ 431.

2      Commerce Commission v Viagogo AG [2019] NZCA 472 at [29] and [90].

[29] It is commonplace for interim relief to be granted against a defendant present in New Zealand, under the High Court Rules and the Court’s inherent jurisdiction, before the proceedings have been served on the defendant. This is appropriate where the purpose of the order would be undermined by serving the proceedings before the orders are made, or in cases where the interim relief is so urgent that it is not possible to formally serve the defendant before seeking that relief.

[90] An application for interim relief should be made without notice to the defendant only where that is essential, either because giving advance notice will defeat the purpose of the order sought, or because the application is so urgent that it is not feasible to give notice. Applications in the second category should be rare, and every attempt should be made to provide such notice as possible – even if it is only a telephone call or text or email – to alert the defendant to what is happening and enable them to participate on a Pickwick basis.

Analysis

[26]             The minute  of the  IHC who is  to hear the Notice  of Requirement,  dated  17 April 2020, indicates that the hearing itself it not likely to occur until the end of April. The Court has no information as to how long the hearing itself might take, or how long it might be before any decision is released. However, based on the Court’s knowledge of appeals relating to such matters, an instant decision by the IHC at the end of the hearing is most unlikely.

[27]             Accordingly, it does not appear that there is any imminent risk to the applicant that would require depriving the respondent of notice of this application.

[28]             The applicant’s claim that unless a without notice injunction is issued, it will be left with no basis to challenge the notification and content failings alleged in respect of the Notice of Requirement, is significantly overstated. The applicant could have moved to judicially review the decision in the IHC’s minute of 17 April 2020 but has not done so. The applicant will also have a right of appeal against any final decision.

[29]             No right possessed by the applicant will be defeated should the interim injunction application be required to proceed on notice.

[30]No attempt has been made by the applicant to alert the respondent on a

Pickwick basis of this application.

[31]             The applicant has not made out any undue delay or prejudice that would occur if a without notice injunction is not issued.

[32]Accordingly, I decline the application to proceed on a without notice basis.

[33]             I direct that the applicant promptly serve on the respondent a copy of all documents filed in support of the application and a copy of this decision on the respondent.

[34]             I abridge the time for the filing of a notice of opposition and any supporting affidavits to five working days from the date of service.

[35]             I direct the Registrar to allocate a half-day fixture to hear the interim injunction application at the earliest available date but not to be earlier than five working days after service on the respondent of the proceedings.

Churchman J

Solicitors:
Dewhirst Law, Palmerston North for Applicant