Booths Logistics Limited v Millard - [2025] NZHC 2338

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2025-412-059 [2025] NZHC 2338

BETWEEN BOOTHS LOGISTICS LIMITED
Plaintiff

AND ROSS JAMES MILLARD
First Defendant

AND BARBARA MARY MILLARD
Second Defendant

AND MELX LINEHAUL LIMITED
Third Defendant

AND RICKY JADE RODGERS
Fourth Defendant

AND ASHLEY MARY RODGERS
Fifth Defendant

24 July 2025

Hearing:

Counsel: R J Gordon for the Plaintiff
M J Hammer and B S Rorrison for First, Second and Third Defendants

Judgment: 19 August 2025

JUDGMENT OF HARLAND J

Introduction

[1] This judgment determines an opposed, on notice application for two injunctions, sought by the plaintiff against the first and second defendants. The application is filed in the context of a proceeding in which it is alleged that the first

BOOTHS LOGISTICS LTD v MILLARD [2025] NZHC 2338 [19 August 2025]

and second defendants have breached the terms of a restraint of trade deed entered into as part of an agreement for the sale and purchase of their business to the plaintiff. The two remaining causes of action comprise an allegation that the third to fifth defendants have induced the first and second defendants to breach certain provisions of the restraint of trade obligations to the plaintiff. The third cause of action against all defendants alleges unconscionable conduct amounting to a breach of s 7 of the Fair Trading Act 1986.

[2] As the statement of claim for the substantive proceeding was filed at the same time as the application for an interim injunction, the defendants did not file a statement of defence to the latter until after the hearing of this application, although it was clear regardless from the first and second defendants' response to this application that, so far as they are concerned, the claim against them will be defended.

[3] The application for injunctive relief was accompanied by an affidavit from Mr Dallas Vince, the plaintiff's Chief Executive Officer, and an undertaking as to damages. The notice of opposition by the first and second defendants was accompanied by affidavits from Mr Millard (the first defendant) and Mr Rodgers (the fourth defendant). Mr Vince filed a brief affidavit in reply.

[4] I have decided to dismiss the application. This judgment sets out my reasons for doing so.

Factual background

[5] The first and second defendants (Mr and Mrs Millard) owned and operated a trucking business through Summerland Express Freight Ltd and Summerland Management Services Ltd (collectively referred to as "the business") until it was sold to the plaintiff, Booths Logistics Ltd (Booths) in August 2022. At the time of sale, the business largely operated in the South Island, having started some 30 years prior, over which time it operated as a general freight and fruit cartage business. The business was sold because Mr and Mrs Millard wanted to retire.

[6] At the time of the sale, the business was operating about 90 trucks. Mr and Mrs Millard's son-in-law and daughter, who are the fourth and fifth defendants (Mr and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 2338
Decision Date: 19 August 2025

CaseChat Overview and Summary

Booths Logistics Limited sought an interim injunction against the Millards, who had sold their trucking business to Booths, and against three other defendants, who were either family members or related businesses of the Millards. The application for injunctive relief was based on an allegation that the Millards had breached a restraint of trade deed entered into as part of the sale and purchase agreement. Booths claimed that the Millards and the other defendants had breached the restraint by operating a competing business in the trucking industry. The court considered the application for injunctive relief, focusing on the balance of convenience and the overall justice of the case. While the court found that there was a serious question to be tried regarding the alleged breaches of the restraint of trade deed, it concluded that the balance of convenience and the overall justice of the case required the injunctions sought by Booths not to be granted. The application for injunctive relief was dismissed. The court emphasized that this decision did not express a concluded view on the outcome of the substantive proceedings, as Booths had a serious case to be tried.

Orders