Blake v Blake
[2022] NZHC 1232
•31 May 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-295
[2022] NZHC 1232
BETWEEN GRANT BLAKE
Plaintiff
AND
KAEL EARLE JAMES BLAKE
First Defendant
AND
KAEL BLAKE HOMES LIMITED
Second Defendant
Hearing: 30 May 2022 Counsel:
D G Dewar and H M Nelson for the Plaintiff First Defendant in Person
Judgment:
31 May 2022
JUDGMENT OF CHURCHMAN J
(Interim injunction decision)
Background
[1] On 27 May 2022, the plaintiff filed a without notice application for an interim injunction together with supporting documentation.
[2] The matter came before Cooke J the same day and he issued a minute directing that the injunction application and other documents be served and for the matter to be called in the Judge’s Chambers List (JCL) on Monday 30 May 2022. 1
1 Blake v Blake & Kael Blake Homes Limited, minute of Cooke J CIV-2022-485-295, 27 May 2022.
BLAKE v BLAKE [2022] NZHC 1232 [31 May 2022]
[3] The matter was called in this morning’s JCL and, as no agreement could be reached as between the parties, the interim injunction application proceeded by way of defended hearing.
The facts
[4] The plaintiff is the father of the first defendant. The plaintiff is 67 years of age and a superannuitant. He is said to be in poor physical and mental health. The first defendant is the sole director and shareholder of the second defendant, which is a property development company.
[5] The plaintiff has resided at 36 Cleland Crescent, Naenae for over 25 years. Up until 2019, the plaintiff’s landlord at that address was Colin Swenson. Mr Swenson is said to have offered the plaintiff the opportunity to purchase the property at its 2017 rateable value, a sum which is said to be significantly less than its then market value.
[6] The statement of claim pleads that the concessional price was offered by way of the longstanding friendship between the plaintiff and Mr Swenson and recognition by Mr Swenson of the plaintiff’s community service.
[7] The plaintiff was not in a financial position to buy the property so arranged for the first defendant to be the purchaser. The plaintiff pleads that there was an agreement between him and his son that his son would permit him to remain in the property for the rest of his life and that he would pay an increased rental in the sum of $420 per week.
[8] The first defendant and his then partner took title to the property and on or about 22 December 2020, the property was transferred to the second defendant.
[9] On 25 February 2022, the first defendant gave the plaintiff a notice to vacate the property within 90 days.
[10] The plaintiff has refused to vacate the property and has instituted proceedings alleging three causes of action; breach of contract, the existence of an institutional constructive trust, and estoppel.
[11] The plaintiff seeks both interim and final relief restraining each of the defendants from terminating the plaintiff’s occupancy of the property.
[12] The first defendant represented himself and opposed the interim relief sought by the plaintiff, relying on a tenancy agreement that had been entered into with the plaintiff. The first defendant said he was simply exercising his rights under the tenancy agreement to terminate the tenancy on notice. He said he had commenced proceedings before the Tenancy Tribunal in order to evict the plaintiff. He thought that it may be some weeks before he could obtain the necessary eviction order from the Tenancy Tribunal.
[13] In anticipation of being able to evict the plaintiff tomorrow (31 May 2022), the first defendant said that he had engaged tradespeople to undertake work on the property.
The law
[14] An application for an interlocutory injunction is a temporary and discretionary remedy. Its purpose is to preserve the respective rights of the parties pending full argument in circumstances where a plaintiff would not otherwise be able to be adequately compensated in damages.
[15] There are three general principles that require consideration in interlocutory applications for interim injunctions:
(a)the applicant must establish that there is a serious question to be tried.
(b)the balance of convenience must be considered which requires consideration of the impact on the parties of the granting of, or the refusal to grant, the order.
(c)an assessment of the overall justice of the position is required.2
2 NZ Tax Refunds Limited v Brooks Holmes Limited [2013] NZCA 90.
Serious question to be tried
[16] If the plaintiff is able to establish the facts as pleaded then serious issues arise in both contract and equity.
[17] Filed with the application was an affidavit in support from Murray Rodgers. The contents of that affidavit substantiate the various factual claims made by the plaintiff. In particular, it deposes to the serious health conditions that the plaintiff presently has and the fact that he does not have any alternative accommodation if evicted.
Balance of convenience
[18] On the one hand, the plaintiff will be inconvenienced, if, at the age of 67, and in poor health, he has to leave his home of some 25 years without anywhere to go. There will also be an element of stress for him in having to commence these proceedings.
[19] Against that, the first defendant has apparently arranged for trades people to come and undertake some work on the property. If there is an interim order, that work will not be able to take place immediately. However, as the first defendant indicated, it may take some weeks for the Tenancy Tribunal to make an eviction order and for that order to be enforced. The first defendant indicated that he would not evict the plaintiff until he had the proper order from the Tenancy Tribunal. Accordingly, any work that the trades people might do isn’t going to get done in the immediate future.
[20] Balancing these factors as best I can, the balance of convenience would seem to favour preserving the status quo until the Court can hear the fully argued case. It is also a situation where damages would be an available remedy for the respondent if the application fails. The plaintiff has filed an undertaking as to damages. If the plaintiff succeeds on the various allegations, then the remedy would be in the nature of an order permitting the plaintiff to remain in the property.
[21] The defendants’ position will not be irreparably damaged by the issue of an interim injunction. There will inevitably be some time delay before the first defendant
can proceed with the application through the Tenancy Tribunal even if no injunction is granted. The granting of an interim injunction supporting the status quo should not add significantly to such delay and in any event, if the defendant is ultimately successful, damages would appear to be an available remedy.
[22] In terms of the overall justice, this is not a case giving rise to the public interest but focuses on the rights as between the parties. There is no suggestion of delay or acquiescence on the part of the plaintiff or other disentitling conduct.
Outcome
[23] As the plaintiff has met the various tests typically applied in respect of an application for an interim injunction, pending further order of the Court, I grant an interim injunction restraining the first and second defendants from taking any steps to evict the plaintiff from the property at 36 Cleland Crescent, Naenae, Lower Hutt.
[24] I direct that the defendants file any notice of opposition, statement of defence and supporting affidavits within 10 days of the date of this decision; that a half day hearing date be allocated on a date mutually convenient to the parties and that, no later than three working days prior to the date allocated, each party files and serves a synopsis of their legal submissions together with supporting authorities.
Churchman J
Solicitors:
Thomas Dewar Sziranyi Letts, Wellington