AVRAHAM YAACOV AGAM AND JONATHAN ANDREW MOON OUTER ASPECT IP LIMITED

[2024] NZHC 2749

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2341

[2024] NZHC 2749

BETWEEN

AVRAHAM YAACOV AGAM

Applicant

AND

JONATHAN ANDREW MOON

First Respondent

OUTER ASPECT IP LIMITED

Second Respondent

Judgment:

(on the papers)

23 September 2024

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 23/09/2024 at pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Hudson Gavin Martin, Auckland Duncan Cotterill, Auckland

AGAM v MOON & ANOR [2024] NZHC 2749 [23 September 2024]

[1]    Avraham Yaacov Agam as plaintiff applies without notice for an interim injunction against Jonathan Andrew Moon (Mr Moon), as first  respondent  and Outer Aspect IP Ltd (OAIP), an Auckland based printing company, as second respondent.

Background

[2]    The background to the application is that Mr Agam is an artist based  in     Tel Aviv. He has been using OAIP’s service to print his artworks for approximately 10 years. Mr Agam and OAIP are currently involved in a dispute regarding payment of invoices issues by OAIP. In the memorandum of counsel filed in support of the application, it is stated that Mr Agam very recently discovered that Mr Moon and OAIP issued a tender offering to sell approximately 2,500 of Mr Agam’s artworks. It is said that Mr Moon and OAIP are seeking expressions of interest from international art galleries to purchase a consignment of Mr Agam’s artworks for a minimum sale price of USD $1.6 million. The tender is scheduled to close at  4  pm  today,  Monday 23 September 2024.

[3]    In support of the application, an affidavit has been filed by an employee of the applicant’s solicitors. Mr Agam has prepared an affidavit, but his affidavit is unsworn and has not been filed as he resides in Tel Aviv, and it has not been possible to have the affidavit sworn in time for filing today. Documents attached to the affidavit filed by the employee of the applicant’s solicitors indicate that the dispute relates to artworks which are said to be worth as much as USD $20 million.

[4]     The correspondence suggests that Mr Moon and OAIP claim they are owed costs associated with the printing and storge of the artworks. Mr Moon and OAIP have now apparently decided to attempt to sell the artworks to seek to recover the amount they say is owed.

[5]    Mr Agam disputes Mr Moon and OAIP’s assertions and the correspondence attached to the affidavit sets out the basis of the dispute.

[6]    The application is made on a without notice basis. It is said that Mr Agam only became aware of the tender process on 17 September 2024. He immediately requested

various urgent undertakings from Mr Moon and OAIP including that they would not sell the artworks pending resolution of the dispute.

[7]     Counsel for Mr Agam has also made attempts to contact Mr Moon and OAIP seeking such undertakings via their solicitors, (Duncan Cotterill) who have advised that they cannot contact OAIP or Mr Moon and have received no instructions in months. Attempts have also been made to contact Mr Moon directly. On 19 September 2024, Mr Moon advised the applicant’s counsel that he is overseas and refuses to provide the undertakings requested unless Mr Agam:

(1)immediately   pays   the   amount   claimed   in    its invoices being USD $4,640,593.10; or

(2)enters into a full and final acceptable settlement agreement and arranges for the collection of the artworks by 4 pm 23 September 2024.

[8]    Counsel for Mr Agam replied seeking undertakings that the respondents will not dispose of the artworks or create further copies of the artworks until further order of the Court, will deliver the artworks to Mr Agam within 10 working days and meet Mr Agam’s costs of the application.

[9]    The applicant advises by memorandum that no further response has been received from Mr Moon or OAIP.

[10]    Notice of the application has been given to the solicitors for Mr Moon and OAIP on a Pickwick basis. Copies will also be sent to Mr Moon/OAIP’s email address.

[11]The injunctive relief sought is:

(a)orders restraining the first respondent, Mr Moon, and the second respondent, OAIP, from:

(i)offering or exposing for sale, selling, issuing to the public or otherwise disposing of, distributing or supplying  certain  of Mr Agam’s artworks (the Artworks) to any third parties; and

(ii)approaching, contacting or otherwise dealing with galleries or art dealers in connection with any attempts to sell the Artworks, including but not limited to representing that either or both of them are acting on behalf of, or otherwise under the authority of, Mr Agam;

until such time as the rights to those Artworks have been finally determined or agreed;

(b)restraining the first and second respondents from creating further copies of the Artworks, or any other Agam copyright works, until further order of the Court;

(c)that, within ten working days, the first and second respondents deliver up the Artworks to Agam; and

(d)that the first and second respondents meet Mr Agam’s costs on this application.

[12]   I am satisfied that there is a serious question to be tried including issues of infringement of copyright should Mr Moon and OAIP sell or reproduce the artworks which are described as original artistic works.

[13]   I also accept the submission that the balance of convenience favours the granting of interim injunctive relief because,  if  injunctive  relief  is  not  granted, Mr Moon and OAIP are likely to sell the artworks to third parties who will come into possession of the artworks  as  bona  fide  purchases  for  value.  This  will  affect  Mr Agam’s ability to recover the artworks should he be the successful party. I also accept that there is a risk that Mr Moon and OAIP may sell the artworks at undervalue which has the potential to devalue Mr Agam’s work.

[14]   As against that, if Mr Moon and OAIP are restrained from selling or attempting to sell the artworks, the status quo position will be largely preserved. There will be ongoing storage costs, however Mr Agam has provided an undertaking as to damages.

[15]   Should injunctive relief be declined, and loss sustained as a result of the sale or attempted sale of the artworks, damages would not be an adequate remedy. The artworks will be in the hands of third parties. I also accept that artworks are not simply fungible items and as an artist the ability to exercise control over the commodification of the work is of significant value to the artist. Further, I accept that there are potential reputational and goodwill implications if the artworks are sold at a material undervalue.

[16]   At this stage, it is impossible to know the actual value of the artworks and my concern is to preserve the position as far as possible.

[17]Should Mr Moon and OAIP succeed the artworks can be sold at a later stage.

[18]The overall justice favours the granting of injunctive relief.

[19]   I am not prepared to order that Mr Moon and OAIP deliver the artworks to Mr Agam. In my view that would not maintain the status quo but would alter the position in a way that is not necessary at this stage of the proceeding, particularly on a without notice basis. It would remove the artworks from the jurisdiction.

Decision

[20]I make the following orders:

(a)restraining the first respondent, Mr Moon, and the second respondent, OAIP, from:

(i)offering or exposing for sale, selling, issuing to the public or otherwise disposing of, distributing or supplying  certain  of Mr Agam’s artworks (the Artworks) to any third parties; and

(ii)approaching, contacting or otherwise dealing with galleries or art dealers in connection with any attempts to sell the Artworks, including but not limited to representing that either or both of them are acting on behalf of, or otherwise under the authority of, Mr Agam;

until such time as either these orders are varied or the rights to those Artworks have been finally determined or agreed;

(b)restraining the first and second respondents from creating further copies of the Artworks, or any other Agam copyright works, until further order of the Court;

(c)leave is reserved to any person impacted by the orders to apply for variation.

[21]Costs are reserved.

Wilkinson-Smith J