Blake v Blake
[2022] NZHC 3161
•29 November 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-000295
[2022] NZHC 3161
BETWEEN GRANT BLAKE
Plaintiff
AND
KAEL EARLE JAMES BLAKE
First Defendant
AND
KAEL BLAKE HOMES LIMITED
Second Defendant
Hearing: 13 October 2022 Appearances:
D G Dewar and H M Nelson for the Plaintiff K P Sullivan and K S Dixit for the Defendants
Judgment:
29 November 2022
JUDGMENT OF GRICE J
Introduction
[1] Mr Grant Blake (Grant) lives in a property at 36 Cleland Crescent, Lower Hutt (the property), owned by his son, Mr Kael Blake (Kael), through his company, Kael Blake Homes Ltd.1 Kael is a property developer. This is an application for an interim injunction to restrain Kael from evicting his father.
[2] Until Kael purchased the property in November 2019, Grant had been renting the property for some years from his friend and landlord, Mr Colin Swenson. When
1 I refer to Mr Grant Blake as Grant and Mr Kael Blake as Kael to avoid any confusion. I refer to Kael as including his company, the second defendant which now owns the property.
BLAKE v BLAKE [2022] NZHC 3161 [29 November 2022]
Mr Swenson became terminally ill, he offered to sell the property to Grant at a price which all parties accept was very favourable. Mr Swenson indicated the sale had to take place before a set date.2 Grant presented the opportunity to his son, Kael, and Kael and his partner, Ms Patricia Keogh, purchased the property in November 2019.
[3] On 25 February 2022, Kael sent Grant a notice to vacate the property. Shortly before the notice was due to expire, Grant applied to this Court for a without notice interim injunction to restrain Kael from evicting him. That injunction was granted on an interim basis pending a full hearing of the injunction application. Kael was served on a Pickwick basis3 and he appeared in person at an urgent hearing to determine the matter. Kael did not have legal assistance nor did he file any affidavits in the matter. The without notice interim injunction was granted on 31 May 2022, the day before the expiry of the notice, on the understanding the matter was to be brought on for a timely hearing, giving Kael the opportunity to file a notice of opposition and statement of defence and supporting affidavits.4
[4] The parties then decided it would be more efficient to have the substantive proceedings heard in a timely manner, rather than deal with the application for injunction separately. The matter was set down for a two-day hearing in October 2022. For various reasons, including a failure contributed to by both parties to keep to the timetable, Grant applied for an adjournment. He said he was not in a position to proceed given the late filing of the defendants’ affidavits and statement of defence and due to his ill health.
[5] Kael opposed the application for adjournment and in particular sought to proceed with the interim injunction hearing, as he had not been given the opportunity to properly argue or file evidence before the granting of the without notice interim injunction. Following a teleconference, a direction was made that the present interim injunction hearing should proceed on the affidavit evidence in accordance with a timetable for the exchange of evidence and submissions. However, the substantive
2 The offer was made in a letter of 31 August 2019 from Mr Swenson to Grant at the 2016 rateable value of $345,000, attaching an estimated market value of $475,000, as long as this was done before 31 October 2019.
3 That is, the documents were served on Kael but the matter was heard on an urgent basis without the usual notice.
4 Blake v Blake [2022] NZHC 1232 at [24].
proceedings would not go to hearing on the scheduled dates. Neither party sought to cross-examine.5
The Court’s approach to interim injunction applications
[6] The approach to an interim injunction is well-settled. Grant must first establish there is a serious question to be tried. That is that the claim is not vexatious or frivolous. Second, the balance of convenience must be considered. This requires consideration of the impact on the parties of granting or refusing to make the orders sought. Then follows an assessment of the overall justice of the position.6
[7] In general terms the balance of convenience and the assessment of the overall justice of the position involve an assessment as to whether refusing the injunction would be harder on an applicant who succeeds at trial than granting it would be on an ultimately successful defendant.7 The enquiry includes consideration of the adequacy of damages as an alternative remedy, whether the status quo should be preserved, whether there are disadvantages to either party which cannot be compensated, and the relative strength of each party’s case.8
Is there a serious question to be tried?
[8] The first question is whether there is a serious question to be tried. I now turn to consider this in respect of all three causes of action pleaded by Grant, namely contract, institutional constructive trust and estoppel.
Contract claim
[9] The contract claim alleges a contract exists between the parties whereby in return for Grant providing Kael the opportunity to purchase the property at below market value, Grant is entitled to an interest in the property which entitles him to reside in the property for life, or at least until he no longer wishes or is able to live there.
5 Minute of Grice J, 10 October 2022.
6 New Zealand Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90 at [12]; American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL); and Eng Mee Yong v Letchumanan [1980] AC 331 (PC).
7 Roman Catholic Bishop of the Diocese of Auckland v Boynton [2018] NZHC 2636 at [14].
8 Wellington International Airport Ltd v Air New Zealand Ltd HC Te Whanganui-a-Tara | Wellington CIV-2007-485-1756, 30 Hurae | July 2008 at [6]–[14].
Their agreement requires him to pay rental at $420 per week. The service of the notice to vacate the property by Kael is alleged to be a breach of that contractual obligation.
[10] Mr Dewar, for Grant, submitted that the life interest was not a traditional type of life interest that could be valued as an interest in property, but rather a right of residence on terms. The terms were not explicit but amounted to a right to reside in the property at a rental equivalent to “the holding costs” incurred by Kael. The right lasted so long as Grant wished to live in the property.
[11] The consideration from Grant in return for the right to reside at the property was providing Kael with the opportunity to purchase the property at a lower than market price, together with the ongoing payment of the holding costs. In particular, in support of this claim, Mr Dewar pointed to:
(a)The offer of 31 August 2019 from Mr Swenson offering Grant the opportunity to purchase the property for the 2016 rateable value, being
$130,000 under the estimated market value. That offer indicated that if Grant did not take up the offer by 31 October 2019, from 7 November 2019 his rent would be increasing from $280 per week to $320 per week, which Mr Swenson said was still well below market rates, which ranged from $440 to $500.
(b)An exchange of texts between Grant and Kael, which, while undated, counsel agreed were sent between September and November 2019. Those texts are as follows:
(i)a text from Grant to Kael, sent early September 2019:
He’s offering me this house at … $ 130 ,000 below its market value .
Have a look at it on line & see what You think …
I’ve been paying the rent here for over 20 years without fail .
…
The suggestion is I see a mortgage broker ? This is Your department not mine …
I just want to keep living in my home .
(ii)a text from Grant to Kael, also undated but likely to have been shortly after the first:
I had a viral respiratory infection that put me in hospital but I’m very pleased to be back on my feet .
When are You coming down next ?
I own two caravans now & don’t know what to do with them ?
Also I’ve been offered to buy this house @
$ 120 ,000 - below its current government valuation .
This is because I’ve been such a good tenant & have payed many thousands of over the years & COLIN has supported me in helping people with drug & alcohol addictions .
All I want is to keep my home … It’s a brilliant opportunity for You guys to add this house to your portfolio .
The difference being ,
I would just be paying You guys rent rather than COLIN .
(iii)a text from Grant to Kael, sent sometime later and probably following Kael’s purchase of the property in November 2019:9
All must be automatic or I fail & get in trouble . First & foremost pay for the Roof then Food & power
…
It will settle down into a repetitive pattern & whatevers left is what it is …
I’m just wrapt I’m never getting kicked out … [smiling emoji]
Choice … [laughing emoji] Love everyone
Dad
(iv)a text from Kael to Grant, apparently sent shortly afterwards on the same day:
Yup A.P. starting 14th of $420 into this account [bank account number]
9 That text was an excerpt taken from Grant’s phone messages and appears to start part way through a message.
[12] Grant says that in-person discussions with Kael led to Kael taking up the offer to purchase the property from Mr Swenson but on the understanding that Kael would allow Grant to stay in the house paying rent.
[13] Grant also refers to a letter from his lawyers dated 23 May 2022 in response to Grant instructing them following his receipt of the notice to vacate the property by 31 May 2022. This letter refers to the offer from Mr Swenson to Grant for the property at price below market value because Grant had been a good long-standing tenant and Mr Swenson supported him in helping people with drug and alcoholic addictions. That letter referred to the three claims which Grant now brings in these proceedings.10
[14] Essentially, Grant argues he provided consideration in providing to Kael the opportunity to purchase the property from Mr Swenson at an undervalue, as well as paying rent, which would amount to the “holding costs” so that Kael would not be out of pocket.
[15]Mr Dewar took me to bank documents which showed the purchase price of
$345,000 was financed 100 per cent by a loan from Westpac at a favourable interest rate of 3.45 per cent per annum. Mr Dewar calculated the outgoings on that at approximately $12,000 per year. Grant had agreed with Kael to an increase of rental to the sum of $420 a week, or approximately $22,000 per annum. The total holding costs (interest, insurance, rates etc) therefore would have been in excess of $12,000, and the rental would have covered them. Mr Dewar says that was the deal struck. Under that deal, if the holding costs went up due to an increase in the interest costs it would be for Grant to pay the increased amount.
[16] Ms Dixit for Kael responded by pointing out the non-compliance with s 24 of the Property Law Act 2007, which required contracts for disposition of land to be in writing. A sale of an interest in land was therefore required to be in writing. Mr Dewar accepted that evidence in writing to satisfy this requirement was “thin”. Essentially, he argued, it was the texts between Grant and Kael, possibly supplemented by the August letter of offer from Mr Swenson to Grant. Mr Dewar countered, however, that
10 The rental in that letter is mistakenly referred to as $420 a week, when in fact the rental being paid at that stage to Mr Swenson was $280 per week. Nothing turns on that error.
there was also, in support of the contractual argument, part performance, being the payment of the rental at $420.
[17] Mr Dewar also contended that this was a contract outside the terms of the Residential Tenancies Act 1986 and in any event it was enforceable in its terms as a right to occupy.
Analysis
[18] On the evidence before me I do not consider there is sufficient written documentation to satisfy the requirements of s 24 of the Property Law Act. Neither is the payment of rent likely to support an argument of part performance, without more. Grant stated in his affidavit filed just before the hearing that the payment of rent was in lieu of “holding costs”. However, this is inconsistent with the description of the payment in his earlier affidavit in May 2022, the letter from the lawyers dated 31 May 2022 and the text messages between himself and Kael.
[19] Grant also faces difficulty in establishing a contract on the evidence before me. Grant signed a residential tenancy agreement which recorded the existing periodic terms of the tenancy. The periodic tenancy in the agreement for sale and purchase dated 16 October 2019 between Mr Swenson as vendor and Kael and Ms Keogh as purchasers records Grant’s tenancy as a periodic tenancy. The tenancy agreement is a standard tenancy agreement, signed on 29 October 2019 and commencing on 7 November 2019, which was within the 10-working day conditional period in the agreement for sale and purchase. The rental in the tenancy agreement is consistent with the texts I have referred to above.
[20] Grant says the reason he did not attend the meeting between Mr Swenson, Kael and Mrs Keogh was that he was not well. Mr Swenson has since died. The only contemporaneous documents support Kael’s evidence that he and his partner met with Mr Swenson and signed up to a standard contract.
[21] Ms Caroline Howard, a legal executive who was acting for Mr Swenson, says that Mr Swenson told her he had offered the property privately to Grant at a discount and that Kael had “stepped in to buy the house on Grant’s behalf”. Otherwise she says
the agreement for sale and purchase was “straightforward”. No documents have been provided which indicate that Mr Swenson left instructions to prepare any record of a life interest or right to occupy in favour of Grant.
[22] I conclude that the evidential base for establishing a contract other than a residential tenancy under the Residential Tenancies Act,11 is thin.
[23] Nevertheless, Grant says he had a conversation with Kael before Kael met with Mr Swenson to sign the agreement for sale and purchase. Grant says he told Kael that he just wanted to be secure and to know that he could stay in the house. Grant authorised Kael “as my signatory to sign whatever contract it took to ensure that happened.” Initially in his first affidavit in support of the interim injunction Grant said that he could not recall a tenancy agreement. However, the tenancy agreement was produced by Kael. Grant in his second affidavit, dated 11 October 2022, elaborated on the alleged arrangements, saying that Kael agreed that Grant could keep living there as long as he paid the outgoings. In addition, he acknowledges that he had signed the tenancy agreement, as Kael asked him to do. He agrees with Kael this was agreed during a social function at his mother’s home, where there were a number of family members. Grant says Kael brought it out in front of everyone and when Grant asked Kael if he should read it, Kael said not to. Grant said he did not read it and nor did he get a copy.
[24] On the material before me, and given the inconsistencies in Grant’s evidence, I assess the claim based on contract as evidentially weak.
Institutional constructive trust and equitable estoppel claims
[25] The second pleaded cause of action claims an institutional constructive trust over the property. This argument is based on a contribution by Grant to the property, being the offer by Mr Swenson to Kael at an undervalue, in the expectation that Grant would be entitled to occupy the property for life. Kael then is said to have confirmed this by acquiring the property, which affirmed Grant’s views and created a reasonable
11 Subject to any exclusion applying under that Act. Counsel referred to a possible exclusion for family members under s 5(1). However, that argument was not taken any further.
expectation that Grant had an interest in the property. Kael should therefore reasonably be expected to yield that interest to Grant accordingly.
[26] Grant points to the following evidence in support of his claim for a constructive trust:
(a)By way of contribution to the property in question, Grant says he provided Kael with an opportunity to purchase the property at under market price, and in addition agreed to pay “holding costs”. In support of this, he points to the texts between himself and Kael, which refer to his keeping his home and agreeing to pay $420 a week.
(b)Grant’s evidence in his second affidavit was that he spoke to Kael, telling him how worried he was about the sale, with Kael responding that he would buy it for his father but “only … on the basis that it doesn’t cost me anything”. Grant says that is why his rent had to increase from the $280 he was paying Mr Swenson to the $420 he paid Kael. Grant said that Kael told him he could keep living there as long as he paid the mortgage, rates and insurance. He said he was sure Ms Keogh agreed too.
(c)In his first affidavit in support of the application for the without notice interim injunction, Grant states that Kael agreed, at his request, to purchase the property in his name, on the basis that the house would be his to live in for the rest of his life. Grant says Kael required higher rent than he had been paying and so he agreed to pay $420 per week. Grant stated, “Kael promised me that the rent would never be raised and that I would be secure.” He then said he continued to live in the house “knowing and believing” that it was for him for the rest of his life. Grant says he had set up the payments for the rent, that they were paid automatically, and that he never missed one.
[27] Grant says that on the basis of the representations made by Kael, he had an expectation of an interest in the property, being the right to reside there for life while
paying the holding costs so that it did not cost Kael anything. Grant says that such an expectation was reasonable in the circumstances, given that Kael had acquired the property at an undervalue.
[28] Finally, Grant says that Kael should reasonably expect to yield Grant an interest. He also points in this respect to the family relationship between them, which would support Kael looking after his father.
[29] In response, Kael says the most that Grant can point to is a “hope” that he would be renting the property until he no longer needed it.
[30] Ms Dixit, for Kael, says the contribution must have been more than minor to the acquisition, preservation or enhancement of Kael’s assets. She says that Grant was not involved in the transaction between Mr Swenson and Kael at all once the initial introduction had been made. In addition, Ms Dixit said Grant has had exclusive use of the property as a tenant and the benefit he has obtained from the property exceeds any contribution he may have made. Ms Dixit submits any expectation that Grant would occupy the property for life is not reasonable and therefore Kael cannot reasonably be expected to yield an interest.12
[31] The evidence before the Court, Ms Dixit says, supports a tenancy arrangement under the Residential Tenancies Act. There is a signed tenancy agreement and a record of the periodic tenancy in the agreement of sale and purchase. Grant was not at the meeting between Kael, Ms Keogh and Mr Swenson, and there are no documents recording any interests other than the tenancy.
[32] Closely related to the constructive trust argument is the third cause of action, based on estoppel. The claim is that representations Kael made to Grant and Mr Swenson that Grant would be able to remain in the property for the rest of his life (or however long he wished to occupy the property) created in Grant an expectation that he would receive a life interest in the property. In reliance on Kael’s representations, Grant did not take steps to find an alternative buyer who would have allowed him to remain in the property for the rest of his life. Kael then unjustly
12 See Wolfe v Wolfe [2021] NZHC 2878 at [139].
departed from that expectation by serving notice to vacate. Finally, if the expectation is not adhered to Grant will have suffered detriment.13
[33] Grant relies on similar arguments as he relied on to establish a constructive trust, saying he was told by Grant that he would have the property for life, which gave rise to a belief or expectation that would be the case. He says this was unequivocally expressed orally and in part supported by the text messages insofar as they refer to living in the property for life. Grant says he reasonably relied to his detriment on the representation and therefore it would be unconscionable for Kael to now depart from that belief or expectation.
[34] Ms Dixit, for Kael, says that no representations were made and the evidence does not on the balance of probabilities support that any such representations were made.
Analysis
[35] In order to establish a constructive trust it is common ground that the following elements are required:14
(a)direct or indirect contributions to the property in question;
(b)the expectation of an interest in the property;
(c)that such an expectation is a reasonable one; and
(d)that the defendant should reasonably expect to yield the claimant an interest.
13 The pleadings indicated that the loss suffered was set out at [15] of the statement of claim. However, that paragraph refers to the breach of contract.
14 Lankow v Rose [1995] 1 NZLR 277 (CA); and see Wakenshaw v Wakenshaw [2017] NZCA 252, [2018] NZAR 532 at [25].
[36] Grant, as the claimant of an interest in property the legal title of which is held by Kael, starts from the point that he has no beneficial interest in the property and must demonstrate that his contributions justify an entitlement to one.15
[37] Whatever the nature of the contributions, it is generally accepted that they must have added significant value to the property.16 They must also “manifestly exceed” any benefits received so that there is a situation of sufficient disproportion to merit equity’s intervention.17
[38] Grant faces significant evidential difficulties in establishing the required contribution. The written documentation points to a straightforward agreement for sale and purchase, subject to a residential periodic tenancy in favour of Grant. This is supported by the signed tenancy agreement. The text messages indicate that Grant intended to pay rent, not “holding costs”. His affidavit filed in May 2022 in support of the without notice application for interim injunction similarly refers to paying rent. Inconsistently, in his affidavit filed immediately before the hearing Grant acknowledged that he signed the tenancy agreement but says he did so without legal advice and without reading the document. In addition, Grant’s affidavit filed immediately before the hearing in reply to Kael’s evidence is consistent with his earlier affidavit evidence that he was to pay rent but now says he was to pay the “holding costs”.18 Mr Dewar submitted that Grant took the risk that these costs may increase depending on interest rates and other facts. That is inconsistent with Grant’s evidence in his first affidavit that the rental would not increase.19
[39] In support of Kael’s version of events are the formal documents to which I have referred, the fact he and Ms Keogh met with Mr Swenson to sign the agreement without Grant present, and that there was nothing in the sale agreement which indicated that Mr Swenson was entering that agreement on the basis that Grant would be in the property for his lifetime or so long as he required it. In support of Grant’s position is the evidence of Ms Howard, who was employed as a legal executive with
15 K P Malcolm Ltd v Malcolm [2012] NZCA 230 at [55(b)].
16 Vervoot v Forrest [2016] NZCA 375, [2016] 3 NZLR 807 at [75].
17 Blumenthal v Stewart [2017] NZCA 181, [2017] NZFLR 307 at [53].
18 This was due on 2 August 2022 but only filed on 30 September 2022.
19 The rental did increase to $450 per week after Grant ordered the installation of a heat pump at Kael’s expense.
Mr Swenson’s lawyers at the time of the transaction. In 2019 she would visit Mr Swenson, who was ill and lived close to her, to get his instructions and have various documents signed. Unlike other properties Mr Swenson owned, which he had listed with real estate agents, Mr Swenson sold this property privately. Ms Howard says that Mr Swenson told her his reason for selling privately was that:
… he wanted to provide for a longstanding tenant, Grant Blake, who had become a good friend of his. He told me that he had offered to sell the house to his tenant at a reduced rate. He explained to me that Grant was unable to finance the purchase of the house himself, but that his son had stepped in to buy the house on Grant’s behalf.
[40] Ms Howard says the agreement for sale and purchase was otherwise straightforward and dealt with as an ordinary conveyancing transaction.
[41] Ms Lewis, the legal executive who was employed by the lawyers acting for Kael, also provided affidavit evidence. She said the agreement for sale and purchase had already been signed when she became involved. The purchase was conditional on finance being arranged within 10 working days, with settlement to take place one week later.20 Grant was a tenant in the property on a periodic tenancy, which was recorded in the agreement. Ms Lewis went on to say that she could recall no mention of any life interest for the tenant or expectation that the tenant could remain in the property. She said if anything unusually notable such as a life interest is mentioned she would have immediately raised the matter with her supervisors to ensure appropriate legal advice was given.
[42] As to whether or not Ms Keogh for her part was aware of the alleged life interest arrangement, there is uncertainty even on Grant’s version of events. While Grant mentions that Ms Keogh came to the house to look around, he does not assert that he talked to her about the life interest arrangement. In addition, it appears that the relationship property agreement between Ms Keogh and Kael took no account of any life interest, and the property is recorded as transferring to Mr Kael’s company as part of the settlement at a price of $550,000, without any discount for a life interest. This was only one year after the purchase of the property, and it likely would have been in Kael’s interest to seek a discount on the transfer value of the property.
20 The transaction settled accordingly on 7 November 2019.
[43] The offer made by Mr Swenson to Grant to purchase the property at less than market value was expressly made on the basis that it would need to be taken up by a certain date or Grant’s rent would increase. In Mr Swenson’s letter, the date of 31 October 2019 was given for accepting the offer, with a date of 7 November 2019 for increasing the rent.
[44] The agreement for sale and purchase is dated 16 October 2019 and was conditional on finance within 10 days, with settlement to take place on 7 November 2019. While there was no evidence as to whose handwriting appeared in various parts of the tenancy agreement, Mr Sullivan for Kael pointed out the difference in writing between Kael and Ms Keogh’s signature and details, done in blue ink, and the very different writing in black ink for Grant’s details and signature, which matched his signature, which appears three times on the tenancy forms. The increased rent payable at $420 per week was effective from 14 November 2019.
[45] The tenancy agreement is not only signed by Grant. Relevant personal details, including Grant’s address and phone numbers, also appear to have been filled out in his handwriting. If Grant filled out the information this rather undermines his evidence that he signed it without reading it.
[46] The rental amount of $420 is unlikely to be considered a significant contribution for the purposes of establishing a constructive trust. In return for the rent, Grant received occupation of the property. It is arguable that in appropriate circumstances the opportunity to purchase a property at an undervalue could constitute a sufficiently significant contribution to a property. However, there is no evidence that at that stage Grant could have found a purchaser to acquire the property within the timeframe required by the vendor and who would allow him to stay.21 The contribution to the property must be made or attributable to the claimant in the expectation of an interest in the property. In this case the written evidence does not establish a connection between the opportunity forgone by Grant to purchase the
21 Although I understand that Mr Murray Rodgers, the real estate agent, is able to buy the property at the sale price of $345,000 now. He was not able to purchase the property within the timeframe at the time the vendor was seeking to sell.
property (or arrange a purchaser for the property who would agree to provide him with a life interest) and the sale to Kael and Ms Keogh.
[47] Grant’s assertions as to the arrangements that were said to be made between Kael and himself were largely oral. That is also problematic as the detail of what that meant, including exactly how the holding costs would be met if they fluctuated or what the exact arrangement was, is missing. Mr Dewar describes this as not a traditional life interest but rather a right to reside in the house until some unspecified time in the future. It is, however, difficult to conclude there was a formal and enforceable arrangement in these circumstances.
[48] While not directly relevant, Kael also adduced evidence that the state of the property was in disrepair. Kael wishes to re-enter and live in the property in order to renovate it. While the evidence at this stage in favour of Grant’s claims is weak, I cannot say there is no possibility at all of Grant establishing a constructive trust.
[49] As I noted, the evidence in support of the first argument is also relevant to the estoppel argument. The New Zealand courts recognise a unified doctrine of equitable estoppel, with its overall requirement of unconscionability. To establish equitable estoppel, the claimant must show:22
(a)a belief or expectation on the part of the claimant that was created or encouraged by the words or conduct of the defendant;
(b)the belief or expectation has been reasonably relied on by the claimant;
(c)detriment will be suffered if the belief or expectation is departed from; and
(d)it would be unconscionable for the defendant to depart from the belief or expectation.
22 Sutherland v Lane [2020] NZHC 721 at [130].
[50] The establishment of an estoppel in this case turns on whether Kael made the representation alleged. I have commented on that above. In particular, that the evidence of such a representation is thin.
Summary on serious question to be tried
[51] I cannot say that the claims are frivolous or vexatious. The claims are based on Grant’s assertion of discussions between Grant and Kael, which Kael denies. The evidence is thin. While I have not heard from Grant and Kael themselves, I have their affidavit evidence. The claims by Grant based on the evidence before me are unlikely to succeed.
The balance of convenience
[52] Both parties referred to the balance of convenience as the guiding principle in granting an injunction. They also noted it had been described as “the balance of the risk of doing an injustice”.23 At this stage the Court is required to balance the injustice or harm that may be caused to the applicant if an interim injunction is not granted and the applicant ultimately succeeds in gaining a permanent injunction against the injustice or harm that may be caused to the respondent if an interim injunction is granted and the applicant ultimately fails to gain a permanent injunction.
[53] The enquiry is broad.24 The factors usually considered are: the adequacy of damages to both parties; preservation of the status quo; the relative strength of each party’s case; and the conduct of the parties.25
[54] As to damages, Grant has filed an undertaking as to damages. He has no assets and is on a benefit, and Mr Dewar noted he was on legal aid. There is no other evidence of his financial standing. Overall, therefore, the undertaking is likely to be of little value.
23 Eng Mee Yong v Letchumanan, above n 6, at 337.
24 McLaughlin v McLaughlin [2019] NZHC 2597, [2019] NZFLR 299 at [38].
25 At [38]; and see American Cyanamid Co v Ethicon Ltd, above n 6, at 408; and Wellington International Airport Ltd v Air New Zealand Ltd, above n 8.
[55] Kael has not provided an undertaking as to damages, as he is the respondent in this application. There is no evidence specifically as to his financial position. However, he does not say he wishes to take possession of the property for financial reasons.
[56] Kael has given evidence that he offered assistance to his father in order to find alternative accommodation. Grant is in receipt of government benefits, and Te Hiranga Tangata | Work and Income New Zealand apparently pays his rent. There was no evidence before me as to the availability of suitable rental accommodation. Neither is Kael bound by any undertaking to find his father accommodation if the interim injunction is not continued. It is clear the relationship between Kael and Grant has deteriorated significantly.
[57] Kael says that any award of damages would not be adequate compensation to him for the lost opportunity to live in the property, renovate it, and/or rent it at market rental to a third party. He points to the fact that Grant would not allow Kael to enter the property to inspect it. Ms Dixit says the interim injunction has been in place for over four months and has created significant inconvenience for Kael, as he is unable to regain possession.
[58] In relation to the preservation of the status quo, Ms Dixit says the property is in need of renovation and repair. Grant has apparently resisted efforts by Kael to carry out inspections and has let the state of the property decline while living there. Evidence was provided as to the state of the property, which Ms Dixit submits is a liability for Kael as the landlord.
[59] Ms Dixit also pointed to the delay in Grant obtaining legal advice. Some time passed between Kael issuing the notice to vacate and Grant consulting lawyers to obtain the interim injunction. Mr Dewar submitted that as soon as his team was instructed it took steps to contact Kael and put Grant’s position to him. Grant says that he had tried to get assistance from a number of sources in the community, including Grey Power, but it was not until he was able to find a lawyer who would do it on legal aid, a task which I understand posed some difficulty, that he was able to
take any steps. In these circumstances I do not attach much weight to the delay as a factor.
[60] Grant says he wishes to stay in the property that has been his home for some years. As I noted, the availability of other rental accommodation is not in evidence. Grant is suffering ill health and at present has carers coming in to look after him. It is unknown how long he will be able to stay in the house in any event.
[61] As will be apparent from my analysis above, I consider the legal and factual strength of Grant’s claims are weak.
[62] In the circumstances, while Grant’s present health situation carries some weight and I have taken it into account, this is a situation where the weakness of the applicant’s case, as I have analysed it on the evidence above, is a significant factor. In addition, realistically damages are unlikely to be paid if awarded and so would not adequately compensate Kael from being kept out of the property and unable to access it to maintain and repair it.
[63] In view of the adjournment of the substantive action, the hearing of the proceeding will not now go ahead until sometime in the new year. I consider the balance of convenience rests in Kael’s favour.
Conclusion
[64]The application for an interim injunction is dismissed.
[65] As to costs, I understand that Grant is on legal aid. If an order for costs is required, any application together with submissions should be filed within five days of the date of this judgment, with any reply within a further three days.
[66] The substantive proceedings now need to be timetabled to a hearing. I adjourn those to a case management telephone conference on a date to be set by the Registrar. The parties will file the usual memoranda as to timetable orders. If they are able to agree, the matter can be dealt with on the papers.
Grice J
Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt Kevin Sullivan Barrister, Wellington
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