Child v Blackley

[2013] NZHC 490

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2013-488-140 [2013] NZHC 490

UNDER  the High Court Rules

BETWEEN  LESLIE BRYAN CHILD AND AVRIL JEAN CHILD

Plaintiffs

ANDDAVID CHARLES BLACKLEY First Defendant

ANDPARUA BAY FARMS LIMITED Second Defendant

ANDALLAN ROY WILD Third Defendant

Hearing:         14 March 2013

Counsel:         W W Peters for the Plaintiffs

S R Carey for the Defendants

Judgment:      14 March 2013

(ORAL) JUDGMENT OF WOODHOUSE J

Counsel / Solicitors:

Mr W W Peters, Wayne Peters Lawyers, Solicitors, Whangarei

Mr S R Carey, Barrister, Auckland

Mr D M Grindle (for the defendants), Webb Ross McNab Kilpatrick Ltd, Solicitors, Whangarei

CHILD V BLACKLEY HC WHA CIV-2013-488-140 [14 March 2013]

[1]      The  plaintiffs  have  sought  an  interim  injunction  or,  in  the  alternative,  a freezing order in relation to 67 cows and 66calves.  This is the first mention in the Duty Judge list.

[2]      The plaintiffs’ case is that they purchased the animals from Country Land Ltd and at the same time took a lease from Country Land Ltd of a farm at Pullin Road near Whangarei (the Pullin Road farm).   The first defendant, Mr Blackley, as I understand  it,  is  a  shareholder  in  the  company.    The  other  shareholder  is  his estranged wife.   There are relationship property proceedings between Mr and Mrs Blackley and a number of other proceedings before the District Court and the High Court relating to the affairs of Mr and Mrs Blackley or companies in which they are interested.

[3]      The plaintiffs’ application for interim relief in respect of the cows and calves arises from the removal of the animals from the Pullin Road farm by Mr Blackley, or parties associated with him, in December 2012.  It appears not to be in issue that the animals were removed by, or at the request of, Mr Blackley and that he effectively retains possession of them.   It also appears not to be in dispute that the surviving animals are now on a farm owned by the third defendant, Mr Wild.

[4]      The plaintiffs now seek interim relief pending a fully defended hearing of the applications.  The interim relief sought by the plaintiffs in relation to these cows and calves is that they be returned to the Pullin Road farm where they would be managed by Mr Child, who is an experienced farmer, and held by him pending determination of the substantive claim.   There might also need to be arrangements for sale of calves.

[5]      The  defendants  resist  the  application  for  what  amounts  to  a  mandatory interim injunction.   They say they have had insufficient time to respond to voluminous evidence for the plaintiffs.  They say, through Mr Carey on their behalf, that the animals will be preserved in the meantime.  Mr Carey also submits that if anything untoward happens to any of the animals damages would be in any event an adequate remedy.

[6]      In respect of these animals I am satisfied that there are no grounds, at this stage at least, to make the mandatory orders sought by the plaintiffs. The reasons are as follows.   The animals were removed in December 2012, but there was no application by the plaintiffs in that regard until these proceedings were filed on or about 5 March this year.  I am also satisfied, to the extent that I need to be satisfied on an interim application, that damages would be likely to be an adequate remedy.  A further consideration, although by no means determinative, is the fact that Mr Blackley appears to be advancing substantive contentions that the sale of the animals to the plaintiffs by the company was to the knowledge of the plaintiffs invalid or in some other way not authorised.

[7]      Accordingly, in respect of the present application before the court relating to

67 cows and 66 calves I do make an order that, pending further order of the Court, the animals, or such of the animals that are still living, are to be held by or on behalf of the defendants with a requirement that they manage the animals in accordance with good stock management practices.

[8]      With the consent of the plaintiffs, animals, including calves, may be sold on such terms as the parties may agree.  If there is urgent need for sale of animals and the parties are unable to agree on the terms of sale, sale may be effected by a registered stock company, with the net proceeds of sale to be held by the company in trust for the parties pending further order of the Court.  In the alternative, in respect of the proceeds of sale, with the agreement of the plaintiffs and the defendants, the proceeds can be paid into a solicitor’s trust account to be held in the meantime pending further order of the Court.

[9]      There  is  an  oral  application  before  the  Court  on  behalf  of  the  plaintiffs relating  to  sheep  on  the Pullin  Road  farm,  use of the  farm  for  grazing by the plaintiffs in terms of their lease from Country Land Ltd, and in that respect use and occupation of a house on the leased land.

[10]     There is a letter from the defendants’ solicitors dated 12 March 2013 stating that if the animals had not been removed from the Pullin Road farm by 5:00 pm on

13  March  2013  arrangements  would  be  made  to  have  the  stock  removed  and

impounded, but if it was not possible to do this, or if any of the animals strayed into a forestry area, then the animals were at risk of being destroyed.  As a consequence of this I made an interim order yesterday that the animals not be interfered with in any way pending the hearing this morning.

[11]     Although there is no formal written application before the court I am satisfied that an interim order should be made in respect of these animals.  This is on the basis that the plaintiffs will without delay have to file an amended application in appropriate form in that regard.

[12]     I make the following orders in respect of the sheep owned by the plaintiffs and presently grazing on the Pullin Road farm:

(a)      The defendants and any person associated with any of the defendants are not directly, or through any person on their behalf, to interfere with the sheep or otherwise interfere with the management of the sheep  on  the  Pullin  Road  farm  by  or  on  behalf  of  the  plaintiffs pending further order of the Court.

(b)The plaintiffs are to confine the grazing of these sheep to that part of the Pullin Road farm which is not subject to a forestry right in favour of Pinecorp Forestry (No. 7) Ltd.

[13]     There is a farm house on the Pullin Road property and, the plaintiffs say, on that part of the property which is not subject to the forestry rights.  There is evidence that in the last week or so Mr Blackley has occupied the property and may be living there with his children.  Mr Peters’ oral application extended to this house with an application, in effect, that Mr Blackley be required to vacate the property and that the plaintiffs’ rights which they claim pursuant to the lease, including a right of occupation of the home, not be interfered with.  I do record a provisional view that Mr Blackley’s recent actions in this regard, given the procedural background, including relationship property proceedings between Mr and Mrs Blackley, are provocative and unwise.   However, this is a matter which, as I understand it, is already fully before the Family Court in the relationship property proceedings.   I

apprehend that although the rights the plaintiffs claim, if ultimately established, are clearly being interfered with by this action, it is not in the short term likely to cause particular prejudice which could not be met by damages.   Accordingly, I do not intend to make any interim orders in respect of the house.

[14]     I do note in respect of the house Mr Carey’s instructions are that the house is

actually on part of the land which is subject to the forestry rights.

[15]     The memorandum just received from Mr Grindle on behalf of the defendants (memorandum dated 14 March 2013) refers to three other proceedings before the High Court or the Family Court.  It may be appropriate for at least some of these proceedings,  or  aspects  of them,  to  be heard  together.   This  includes  questions relating to occupation of the Pullin Road farm and being matters, as I have noted, that are already before the Family Court.   I also understand that the possibility of removing the relationship property proceedings into the High Court was in fact raised by Judge Maude in the Family Court with a view to that matter being dealt with at a hearing yesterday.  Mr Peters’ understanding is that the question of transfer to the High Court was not able to be dealt with at the hearing yesterday.   The possibility of a number of proceedings being heard together will need to be considered, but it is premature to do so in this proceeding at this time.

[16]     There is need for directions in respect of the proceedings before me and I

make the following directions by consent:

(a)      An amended statement of claim and amended application for interim injunction by the plaintiffs, together with any further affidavits in support of the amended application for an interim injunction, are to be filed and served by this coming Monday, 18 March 2013.

(b)A  statement  of  defence,  notice  of  opposition  to  the  amended application and any affidavits, or further affidavits, for the defendants are to be filed and served by Wednesday 3 April 2013.  The direction relating to a statement of defence need not be complied with if the defendants   prefer  not   to  file  a   statement   of  defence  pending

determination  of  the  plaintiffs’  present  application  for  summary

judgment in these proceedings.

(c)       The summary judgment application has a first call, it appears, on 9

April 2013.  Further steps on the summary judgment application will need to be reviewed in the light of the need to dispose of the application for an interim injunction and the interim orders that have already been made.  The plaintiffs are to review that and advise the Court and the defendants as to whether they wish to proceed with the summary judgment application pending determination of the application for an interim injunction following a full hearing.

(d)A  fixture  is  to  be  allocated  for  determination  of  the  amended application  for  an  interim  injunction  on  the  first  available  date allowing for the preceding timetable. The estimate for the hearing is a half day.

(e)      Submissions for the plaintiffs in support together with a casebook, if required, are to be filed and served seven working days before the fixture, with submissions and any casebook for the defendants three working days before the fixture.

[17]     The parties will keep under review the question as to whether this proceeding should be heard together with some of the other proceedings, or aspects of some of the other proceedings.   If there is any development in that regard bearing on the disposal of the present matters, including the proposed fixture, counsel will notify

the Court by memorandum and a telephone conference can be convened if necessary.

Woodhouse J