Casama Group (NZ) Limited v Guenole

[2012] NZHC 3254

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-2579 [2012] NZHC 3254

BETWEEN  CASAMA GROUP (NZ) LIMITED First Plaintiff

ANDMINERAL LIMITED Second Plaintiff

ANDJACKSON ESTATE LIMITED Third Plaintiff

ANDGEOFFREY RONALD GUENOLE First Defendant

ANDSCETTRINI INVESTMENTS LIMITED Second Defendant

Hearing:         3 December 2012

Counsel:         R C Laurenson for Plaintiffs

P S J Withnall for Defendants

Judgment:      3 December 2012

ORAL JUDGMENT OF THE HON JUSTICE KÓS

[1]      This is an application for interim injunction or interim preservation orders preventing the defendants from continuing to distrain, or disposing of the plaintiffs’ wine stocks.

[2]      The plaintiffs are the owners of wine held in the defendants’ warehouse.  The first plaintiff, Casama Group, has wine stock to the approximate value of $473,000 in the warehouse.   The second plaintiff, Mineral, has wine stock to the value of

$59,000.    The  stock  held  by  the  third  plaintiff,  Jackson  Estate,  is  relatively

insignificant, some $1,500 or so.

CASAMA GROUP (NZ) LIMITED & ORS v GUENOLE & ANOR HC WN CIV 2012-485-2579 [3 December

2012]

[3]      The  defendants  have  no  contractual  or  other  legal  relationship  with  the plaintiffs.  It has a contractual relationship with a third party who lies between the two sides. That is Wine Logistics Limited (WLL).

[4]      WLL is, or was:

(a)       the defendants’ tenant; and

(b)      the plaintiffs’ wine distributor.

In this capacity I understand it stores and delivers wine to the plaintiffs’ purchasers. There is no evidence before me that WLL has any ownership interest in the wine.  In fact this afternoon further evidence was produced to show that title to the wine is retained throughout by the plaintiffs, pending delivery to purchaser retailers.

[5]      It appears that WLL has fallen into arrears in relation to rent payable to the defendants under the warehouse lease.  It is said that something like $90,000 rent is owed.  The lease has now been cancelled, ostensibly by the defendants re-entering. But there is an allegation that they did so prematurely.  WLL has also purported to cancel the lease. Whatever the case, the lease is cancelled.

[6]      In the meantime the defendants have distrained goods in the premises.  Their exact legal basis for doing so is unclear given abolition of the Distress and Replevin Act 1908 by the Property Law Act 2007.   It is also unclear on what basis they purport to distrain goods not owned by WLL, but held by it on a possessory basis as bailee only.

[7]      Some two weeks ago or so WLL issued proceedings in the District Court seeking interim relief against the defendants.  A District Court hearing took place, I am   told,   on   23   November   2012   before   District   Court   Judge   Broadmore. Unfortunately that hearing took place without the involvement of the owners of the wine  stocks,  the  present  plaintiffs.     However,  Mr  Withnall,  counsel  for  the defendants, was present at that hearing and he tells me that it played out as follows. The District Court Judge, dealing with a busy list, was not in a position to make

formal orders on the spot.  He indicated the orders he would make and asked counsel to settle their exact terms.  The indicative orders (although they were not orders in law) would have provided for the retention of some stock sufficient to cover the rental arrears, and released the balance.  In fact no such formal orders were finalised by counsel.   Ultimately, on Friday 30 November, WLL advised the District Court that it did not seek the making of formal orders.   It follows that this Court has a blank canvas inasmuch as there are no orders in the Court below, in those different proceedings, to restrict this Court’s sphere of action today.

[8]      On Friday the plaintiffs applied, as I have said, for interim injunction or interim preservation orders to obtain the release of the wine detailed in [2] above.

[9]      The matter was called before me this morning at 10.00 am.   Mr Richard Laurenson  appeared  for  the plaintiffs and  Mr  Paul Withnall  for the defendants. Mr Withnall indicated that the defendants do not seek to distrain in relation to either Mineral or Jackson Estate, and orders can be made in relation to the release of stock held to their account.

[10]    The position in relation to Casama, the first plaintiff and owner of the overwhelming proportion of the wine stock, was slightly more complicated.  I stood matters down until 4.00 pm.  In the course of the day the matter has become clearer. It is apparent that WLL has no proprietary interest in the wine stock, there being the clear provision in the contractual arrangement between it and Casama reserving title to  Casama  until  transfer  to  the  ultimate  purchaser.     In  those  circumstances Mr Withnall was not in a position to oppose with any vigour the making of orders requiring the release to Casama of its wine stock.

[11]     There will therefore be orders in relation to Casama, as there have been in relation to Mineral and Jackson Estate.  The particular matter of concern is of course to ensure that such wine as is now released to each of the plaintiffs is strictly their wine, and not wine belonging to any fourth party.  It is not immediately apparent to me how this Court can assist in relation to sieving the wine stock to ensure that that particular objective is met.  In my view the better course now is to make orders as

sought but reserve leave if need be to the defendants to come back to Court to seek clarification or restriction of the orders being made.

[12]     There  will  therefore  be  orders  today  in  favour  of  each  of  the  plaintiffs requiring the immediate release to them by the defendants of goods owned by them and held in the defendants’ premises at 1 Prosser Street, Elsdon in Porirua.

[13]     Leave is reserved to either party to apply further.

[14]     Costs at this stage are reserved.  If they cannot be resolved then I will receive memoranda from counsel in due course.

[15]     I express my appreciation to both counsel for the constructive way in which this matter has been dealt with.

Stephen Kós J

Solicitors:

Sievwrights, Wellington for Plaintiffs