Cunningham v Butterfield HC Timaru CIV-2011-476-000400

[2011] NZHC 1273

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2011-476-000400

BETWEEN  NEVILLE JOHN CUNNINGHAM Plaintiff

ANDJOSEPH GORDON BUTTERFIELD EUAN BOYD LINDSAY HILSON CATRIONA MACKAY BEATOCK BAKER

IN THEIR CAPACITIES AS TRUSTEES OF THE ESTATE OF

DONALD MOUNT COOK BURNETT Defendants

Hearing:         20 September 2011 (Heard at Christchurch)

Appearances: N Till QC for Plaintiff

P Whiteside for Defendant

Judgment:      7 October 2011

RESERVED JUDGMENT OF HON JUSTICE FRENCH

on application for interim injunction

Introduction

[1]      Mr Cunningham operates a big game trophy hunting business on land leased to him by the defendant trustees.

[2]      The   trustees   have   purported   to   cancel   the   lease   on   the   grounds

Mr Cunningham was in default of his obligations under the lease.

[3]      Mr Cunningham  contends  the  cancellation  was  unlawful.    He  has  issued proceedings seeking a declaration to that effect and an injunction restraining the trustees from interfering with his quiet enjoyment of the leased land.  Alternatively,

he seeks relief against forfeiture under s 253 of the Property Law Act 2007.

CUNNINGHAM V BUTTERFIELD HC TIM CIV-2011-476-000400 7 October 2011

[4]      The case has been set down for hearing in February 2012, with a back up fixture in November this year.

[5]      In the meantime, Mr Cunningham seeks an interim injunction to prevent the trustees excluding him from the land until the substantive proceeding can be heard.

Factual background

[6]      The land in issue is a block of land called the Station Trophy Block.  It is part of Mt Cook Station.    Mt Cook Station was previously owned  by a  Mr Donald Burnett, but is now owned by the defendants in their capacity as the trustees of his estate. Mr Burnett died in July 2010.

[7]      In 2005, Mr Burnett agreed to lease a large area of  Mt Cook Station to Mr Cunningham for the purposes of his trophy hunting business.   A written lease document was signed in November 2005.

[8]      The  following  year,  Mr Burnett  agreed  to  lease  Mr Cunningham  part  of another neighbouring property which Mr Burnett also owned called Cox’s Downs. A separate lease agreement relating to Cox’s Downs was signed.

[9]      In order for the land to be able to be used for game hunting, it needed to be deer  fenced.    Mr Burnett  paid  for  the  fencing,  most  of  which  was  physically undertaken by Mr Cunningham himself.

[10]     In about 2008, Mr Burnett decided he wanted to reinstate sheep to Mt Cook

Station.

[11]     Negotiations ensued, culminating in the signing of a deed of variation of the two leases in 2010.  Under the variation, Mr Cunningham agreed to relinquish all of the Mt Cook Station blocks he was leasing except Station Trophy Block.   In exchange, Mr Burnett agreed to lease him more of the Cox’s Downs land.   The variation extended the term of both leases to 31 October 2015.

… use his best endeavours to destock the Mount Cook Station paddocks to be relinquished to DMCB [Mr Burnett] as soon as possible.   If the stock cannot be removed from the property they will be removed into the Station Trophy block as soon as possible and taken off the property as soon as possible in spring.

[13]     The agreement also provided for what was described as an ―agreement in principle‖ regarding fencing of Cox’s Downs land.  Not all of the Cox’s Downs land was deer fenced.

[14]     After the variation was signed, an argument arose over the fencing and in mid-2010 the trustees instructed Mr Cunningham to stop fencing work on Cox’s Downs.   Mr Cunningham responded by moving 150 hinds in fawn back onto the relinquished Mt Cook Station paddocks.   His justification for doing so was that without being able to complete the fencing, he had insufficient fenced paddocks to hold the stock.

[15]      According to Mr Cunningham, it was always understood he would not be able to move all of the stock off the relinquished paddocks onto Trophy Block and Cox’s Downs until all the fencing was completed.

[16]     This is very much disputed by the trustees.   They deny any link between fencing and de-stocking.  They point to the absence of any such express provision in the  variation  and  have  also  adduced  affidavit  evidence  (which  Mr Cunningham denies) that during the negotiations Mr Cunningham said he would be taking some

of the animals to another property altogether.1

[17]     The next thing that happened was that the parties agreed to try and resolve their differences through mediation.

[18]     The mediation took place in December 2010.   It resulted in the signing of a settlement agreement.

1      Mr Till advised me that although Mr Cunningham’s reply affidavit did not address this specific

allegation, it is very much denied and will be contested at the substantive hearing.

6.        Neville  will  de-stock the  Mt  Cook Station  paddocks  (other than

Station Trophy Block) of 150 hinds and their fawns by 7 March

2011 provided that the trustees pay $8000 plus GST (on presentation of an invoice) towards the reinstatement of the elk shed to a state in

which it can be used for the handling of deer.   Peter Clarke and

Neville are to agree on what work is required for this purpose.

The work on the shed is to be completed no later than 14th February

2011.  Any animals remaining in these paddocks after 7 March 2011

(the ―remaining stock‖) will be pushed back by Neville into the Station Trophy Block and removed from the property as soon as possible in spring 2011.

In respect of the remaining stock, the Trustees undertake to give Neville notice by email of any animals seen in Mt Cook Station paddocks.  Neville is to have 30 days from the date of the notice to remove those stock.

[20]     Unfortunately, notwithstanding the signing of the settlement agreement, the arguments continued, a key dispute being whether Mr Cunningham was complying with his obligation to de-stock the relinquished paddocks.

[21]      On  14  March  2011,  the  trustees  served  Mr Cunningham  with  a  notice asserting that he had only removed approximately 75 of 150 deer from the relinquished paddocks and giving him a deadline of 30 days to remove them.  The deadline was subsequently extended.

[22]     According   to   Mr Cunningham,   over   the   ensuing   weeks   he   went   to considerable lengths to remove the deer and any other wild animals that were still on the relinquished land.  Only a few elusive animals remained.  The trustees however did not accept this and on 2 May 2011 issued a notice of intention to cancel lease under s 246 of the Property Law Act 2007.

[23]     The notice alleged that Mr Cunningham was in default under the lease for:

a)        not removing stock from all Mt Cook Station paddocks except the

Station Trophy Block, in breach of the Settlement Agreement dated

20 December 2010;

b)releasing further animals onto the Mt Cook Station paddocks not leased by you, and allowing or failing to prevent hunters discharging their firearms on an area of Mt Cook Station other than the Station

Trophy Block, in breach of the Heads of Agreement dated 13 April

2010 and the Settlement Agreement of 20 December 2010.

[24]      The second alleged default relates to two shooting incidents which had taken place the previous month on Mt Cook Station land where sheep were grazing.  The trustees claim Mr Cunningham was using the relinquished land for the purposes of his business, whereas Mr Cunningham contends the shooting was done as part of his efforts to de-stock.

[25]     The notice of intention to cancel continued:

Action required to remedy default

2.The default specified in a) above is capable of being remedied.  You are required to remedy the default by:

a)removing all of your stock from all areas of Mt Cook Station other than the Station Trophy Block.

3.        You must remedy the default by Friday 3 June 2011.

4.        The breach specified in b) above is not capable of being remedied.

Accordingly, you are required to pay compensation to the lessor of

$5000 by Friday 3 June 2011.

Consequence if default not remedied

If you have failed to remedy the defaults by Friday 3 June 2011, the lessor may seek to cancel the lease in accordance with s 244 of the Property Law Act 2007.

[26]     After receiving the notice of intention to cancel, Mr Cunningham renewed his efforts to move the stock, to the point where he claimed that compliance had been achieved on 7 June 2011.

[27]     According to the trustees, however, a walk through count established that there were still 80 of Mr Cunningham’s animals on Mt Cook Station land.

[28]     The trustees then served a notice of re-entry and cancellation of lease dated

19 June 2011.2   That in turn prompted Mr Cunningham to file these proceedings and seek an interim injunction.

2      Although there was a delay in effecting service, Mr Till says no service point is being taken.

[29]     The application for an interim injunction is strongly opposed.

[30]     For completeness, I should record that the disputes I have mentioned above are not the only disputes between these parties.   However, they are the central disputes of particular relevance.

[31]     I  also  record  it  is  common  ground  there  are  still  stock  belonging  to Mr Cunningham on the relinquished paddocks and that probably the only effective way of removing them now is to shoot them.

Principles relating to the granting of interim injunctions

[32]     It  is  well  established  that  in  considering  an  application  for  an  interim injunction, the Court should have regard to:

a)        Whether the plaintiff can show there is a serious question to be tried. b)       The balance of convenience between the parties.

c)        The overall justice of the case.

Whether Mr Cunningham can show there is a serious question to be tried

[33]     Mr Cunningham contends it is strongly arguable the cancellation was not valid.

[34]     The  key  arguments  advanced  by  Mr Cunningham  in  support  of  that contention can be conveniently summarised as follows:

[i]       He  was  not  in  default  of  his  obligation  to  de-stock  the relinquished paddocks.

[ii]      The April shooting incidents do not amount to a breach of the lease.

[iii]     The demand for $5000 compensation was unreasonable.

[iv]     The notice of intention to cancel was defective because it purported  to  cancel  both  the  Cox’s  Downs  lease  and  the Station Trophy Block lease, whereas the notice of cancellation only related to the latter.

[35]     Mr Cunningham further contends that even if the notices and cancellation were valid, the Court should in the exercise of its discretion grant him relief from cancellation applying the well known principles articulated in Studio X Ltd v Mobil Oil NZ Ltd.3

[36]     I turn now to consider the strength of these various arguments, mindful of authority that the issue whether there is a serious question to be tried should not be brushed over lightly.  It is not sufficient for a plaintiff just to say there is a tenable cause of action from a legal point of view and a conflict of evidence on the facts.4

Is there a serious question to be tried that Mr Cunningham was not in breach of his obligations to de-stock the relinquished paddocks?

[37]     I   accept    there   is    a    tenable   argument    that    under   the   variation Mr Cunningham’s obligation was only to remove stock from Mt Cook Station if he could adequately place those stock on Cox’s Downs.  The variation did not say so expressly.  However, while the absence of an express provision is very important, it is not necessarily conclusive, especially given the nature of the various documents that were signed.  As Mr Till put it, they are home-spun documents and clearly do not record full details of the agreements that were reached.  Much is likely to depend on the matrix of facts, which I am simply not in a position to determine at this interim stage.

[38]     Success  on  this  point  would  not  however  be  a  complete  answer  for

Mr Cunningham.   It might enable him to refute claims that he was flagrantly in breach  of  his  obligations  when  he  returned  the  150  hinds  to  the  relinquished

3      Studio X Ltd v Mobil Oil NZ Ltd [1996] 2 NZLR 697.

4       Ansell v New Zealand Insurance Finance Ltd HC Wellington A434/83, 30 November 1983.

paddocks in mid-2010.  However, in my view, as far as events after December 2010 are concerned, the fencing/destocking link argument is not open to him because of the settlement agreement.  Nor is it open to him to argue that his obligation was not an absolute obligation but one of best endeavours.  The settlement agreement drops the  ―best  endeavours‖  language  that  was  in  the  variation  and  simply  says  that Mr Cunningham will de-stock the Mt Cook Station paddocks.   It is conditional on the trustees paying $8000 towards the reinstatement of an elk shed.  However, that condition has been satisfied.

[39]      In my view, the settlement agreement undoubtedly forms part of the lease and it is not tenable to suggest otherwise.

[40]     The settlement agreement is not however without its own difficulties.

[41]     As mentioned above, the critical clause reads:

6.        Neville  will  de-stock the  Mt  Cook Station  paddocks  (other than

Station Trophy Block) of 150 hinds and their fawns by 7 March

2011 provided that the trustees pay $8000 plus GST (on presentation of an invoice) towards the reinstatement of the elk shed to a state in which it can be used for the handling of deer.   Peter Clarke and Neville are to agree on what work is required for this purpose.

The work on the shed is to be completed no later than 14th February

2011.  Any animals remaining in these paddocks after 7 March 2011 (the ―remaining stock‖) will be pushed back by Neville into the Station Trophy Block and removed from the property as soon as possible in spring 2011.

In respect of the remaining stock, the Trustees undertake to give Neville notice by email of any animals seen in Mt Cook Station paddocks.  Neville is to have 30 days from the date of the notice to remove those stock.

[42]     There is an argument over the interpretation of this clause.   What do the words ―the remaining stock‖ mean?  Do they mean the 150 hinds – as the subsequent wording of the March 2011 notice to remove stock would suggest – or was what was intended a complete clearance of all animals belonging to Mr Cunningham still on the relinquished paddocks?  Further, was ―the property‖ from which the remaining animals had to be removed in spring 2011 Mt Cook Station or was it Station Trophy Block?

[43]     The interpretation is crucial.  If the reference was to Mt Cook Station, then the  trustees  have  acted  prematurely  in  issuing  the  notice  to  cancel  because Mr Cunningham had until spring 2011 to remove the animals from the relinquished paddocks.  If however ―the property‖ is Station Trophy Block, as the trustees argue, that would mean the spring deadline only relates to Mr Cunningham removing the animals   from   Station   Trophy   Block.      Under   the   trustees’   interpretation, Mr Cunningham’s  animals  either  had  to  be  off  Mt  Cook  Station  altogether  or confined to Station Trophy Block, and then in spring he was to remove them from Station Trophy Block.

[44]     This  latter  interpretation  may  however  undermine  the  trustees’  other contention that the obligation to de-stock was not limited to the 150 hinds (and their fawns) but extended to all animals owned by Mr Cunningham.   If ―the  remaining stock‖ refers to all animals, why would Mr Cunningham be required to remove all of them from Station Trophy Block?   He had to have some animals left on Station Trophy Block to be able to operate his business which involved not just stags but also tahr and chamois.

[45]     The settlement agreement, which is hand-written, is not particularly well drafted.

[46]     In my view, the wording is such that the term ―the property‖ must refer to Station Trophy Block.   It is not tenable to suggest otherwise.   The words in parentheses in the opening sentence of cl 6 make that clear.  It follows that I do not consider there is a serious question to be tried that the trustees were required to wait until spring 2011.

[47]     It  is  also  not  tenable  in  my  view  to  suggest  that  Mr Cunningham’s  de- stocking obligation is limited to the 150 hinds.   I accept the primary focus of the settlement agreement was the 150 hinds.  However, as at the date of the settlement agreement there were also stags and other species belonging to Mr Cunningham such as tahr and chamois still on the relinquished paddocks.  Mr Cunningham had a legal obligation at general law to remove his stock from land that was no longer leased to him and it is in my view most unlikely that the parties intended anything other than a

complete clearance.   Significantly, Mr Cunningham’s own lawyer, writing in May

2011, described Mr Cunningham’s obligation as being ―to remove off the Mt Cook

Station paddocks any animals owned by him‖ (emphasis added).

[48]     The only way of making sense of the settlement agreement and to give effect to the parties’ intentions is to construe the words ―the remaining stock‖ as meaning all Cunningham animals, with the obligation to remove all except trophy animals from Station Trophy Block in the spring.

[49]     However, that is not the end of the matter.

[50]     It is common ground that animals (including species other than deer) which Mr Cunningham  has  removed  into  Station  Trophy  Block  have  returned  to  the relinquished paddocks because the boundary fence is in a poor state of repair.

[51]     Mr Whiteside properly acknowledged that if responsibility for maintaining the fence lies with the trustees, and if the stock still on the relinquished paddocks as at the date of the notice of intention to cancel were all returnees, then the notice would be defective.

[52]     On the affidavit evidence before me, it is impossible to determine whether and to what extent the stock on the relinquished paddocks were returnees.

[53]     Mr Whiteside,    however,    says    it    is    immaterial    because    it    was Mr Cunningham’s responsibility to maintain the boundary fence, not the trustees’. In support of that submission, Mr Whiteside emphasised the specialist nature of deer fencing, the fact that it was Mr Cunningham who had introduced the deer, and that payments made by Mr Burnett and the trustees for fencing were limited to fencing on Cox’s Downs.   Mr Whiteside pointed out that the variation never dealt with fencing on Mt Cook Station (as opposed to Cox’s Downs), and that none of the lease documents imposed any obligation on Mr Burnett/trustees to repair or install fences. In  those  circumstances,  he  submitted  the  matter  was  governed  by  the  lessee’s

implied covenant to repair implied by s 106(b) of the now repealed Property Law

Act 1952. 5

[54]     Section 106(b) provides:

106     Covenants implied in leases

In every lease of land there shall be implied the following covenants by the

lessee … :

…

(b)       That he … will, at all times during the continuance of the said lease, keep, and at the termination thereof yield up, the demised premises in good and tenantable repair, having regard to their condition at the commencement of the said lease, accidents and damage from fire, flood, lightning, storm, tempest, earthquake, and fair wear and tear (all without neglect or default of the lessee) excepted:

Provided  that  this  covenant  shall  not  be  implied  in  any  lease  of  a dwellinghouse.

[55]     For his part, Mr Till argued that either it was the lessor’s sole responsibility (because the lessor had always paid for the fencing and the only express provision requiring Mr Cunningham to repair damage to fences was in the Cox’s Downs lease) or it was a joint responsibility governed by the Fencing Act 1978 and not the implied covenant.   He contended that ―demised premises‖  for the purposes of the implied covenant  did  not  include fences  and  certainly did  not  include boundary fences. Mr Till also argued that the implied covenant would not render Mr Cunningham liable for disrepair caused by an act of God such as flooding.

[56]     Perhaps surprisingly, having regard to New Zealand’s agricultural tradition,

there is very little authority on the point.

[57]     What authority there is suggests the following principles apply:

[i]       If a lease contains an express provision obliging the tenant to erect and maintain boundary fences, then the Fencing Act does

not apply.6

5      Notwithstanding repeal, the implied covenant still applies to leases that came into operation before 1 January 2008; s 367(6) Property Law Act 2007.

[ii]      The term ―demised premises‖ in s 106 is capable of including land.7    Whether a boundary fence forms part of the demised premises is necessarily a question of construction of the lease. If it is not part of the demised premises, then the covenant does not apply to it.8

[iii]     If  there  is  no  covenant,  express  or  implied,  to  repair  a boundary fence in the lease, then the Fencing Act could apply to impose joint responsibility.  That would only be the case if both parties came within the statutory definition of occupier, which  appears  to  be  so,  this  being  a  lease  for  ―10  years certain‖.9

[58]     It follows that the issue will turn on the construction of the lease and whether the boundary fence forms part of the demised premises.   In my assessment, the matrix of facts is again likely to be highly important when construing the documents. On the limited evidence before me, it is not possible at this interim stage to reach any concluded view.

[59]     I therefore consider that there is a serious question to be tried as to whose responsibility it was to mend the boundary fence, which in turn may impact on the question of whether or not Mr Cunningham was in breach of his obligation to de- stock.

[60]     For  completeness,  I  should  record  that  I  do  not  consider  the  evidence supports Mr Cunningham’s claim that he was thwarted in his attempts to remove the animals by the actions of the trustees’ agent to the point where he was prevented

from complying with his obligation.

6      Public Trustee v McKeown (1898) 16 NZLR 641; The Laws of New Zealand, Lessors and

Lessees, para 202.

7      BP Oil Ltd v Ports of Auckland [2004] 2 NZLR 208.

8      Aldridge Boundary Walls and Fences (8th ed, London, Fitzsimons Law & Tax, 1997) at 63 citing

Blundell v Newlands Investment Trust (1958) 172 EG 855.

9      Fencing Act 1978, ss 2 and 9.

[61]     Another point raised by Mr Till was that having regard to the terrain and the fact  that  these  were  wild  animals,  the  timeframe  specified  in  the  notice  for remedying the default was unreasonable.

[62]     I disagree.  The reasonableness of that period must be assessed in the context of the background history and the fact that Mr Cunningham had been under this obligation since December 2010 (arguably since April 2010).

Is there a serious question to be tried that the April shooting incidents did not amount to a breach of the lease?

[63]     Mr Till  submits  that  at  the  highest  for  the  trustees,  the  April  incidents amounted to a trespass on land, not a breach of the lease.

[64]     I am not persuaded that the deliberate release of animals which it was the lessee’s obligation to remove would, as a matter of law, be incapable of amounting to a breach of the lease.  Likewise, the act of discharging a firearm on the lessor’s property when the lease documents make it clear hunting is to be restricted to Station Trophy Block.  However, it is not necessary for me to reach a definitive view on that issue because I accept Mr Till’s further point that there is in any event a genuine conflict in the evidence about these incidents which it would not be proper for me to resolve at this interim stage.

[65]     I therefore accept that there is a serious question to be tried about whether the

April incidents amount to a breach of the lease.

[66]     Mr Till   also   questioned   the   $5000   figure   claimed   for   compensation, submitting it was plainly unreasonable.   That  may well be the case.   However s 247(1)(b) of the Property Law Act 2007 provides that a notice under s 246 is not invalid merely because the lessor may have specified an amount of compensation that is unreasonable.  Even if the trustees had not suffered any direct loss as a result of firearms being discharged, they have incurred legal costs in connection with the incident.

Is  there  a  serious  question  that  the  notice  of  intention  to  cancel  is  invalid because it refers to both leases instead of just the one lease which the trustees intended to cancel?

[67]     Like the other documents in this case, the notice of intention to cancel is not particularly well drafted.  It is capable of the interpretation that if the breaches are not rectified, the lessor would cancel both the Station Trophy Block lease and the Cox’s Downs lease.

[68]     To put it another way, the trustees threatened more dire consequences than were actually implemented or intended to be implemented.

[69]     Mr Till emphasised the importance of precision in such notices and claimed that  Mr Cunningham  was  prejudiced  because  he  was  denied  the  opportunity  of properly considering his position.

[70]     Section 246 of the Property Law Act 2007 requires that the notice adequately informs the lessee of the following:

(a)      the nature and extent of the breach complained about:

(b)       if the lessor considers that the breach is capable of being remedied by the lessee doing or stopping from doing a particular thing, or by the lessee paying reasonable compensation, or both,—

(i)       the thing that the lessee must do or stop doing; or

(ii)      the amount of compensation that the lessor considers reasonable; and

(c)       the consequence that, if the breach is not remedied at the expiry of a period that is reasonable in the circumstances, the lessor  may  seek  to  cancel  the  lease  in  accordance  with section 244:

(d)      the effect of section 247(1) and (2):

(e)       the right, under section 253, to apply to a court for relief against cancellation of the lease, and the advisability of seeking legal advice on the exercise of that right.

[71]     The  trustees’  notice  did  contain  information  about  all  the  matters  listed

above, including consequences.  If it had been the other way around and the notice

had specified a less draconian consequence than the consequence later imposed, then

I consider Mr Cunningham would be on stronger ground.  As it is, I consider he was

―adequately    informed‖,    as   required   by   the   legislation.      Arguments   that

Mr Cunningham was somehow prejudiced are, in my view, strained.

[72]     Were this the only argument being raised by Mr Cunningham, it would not be sufficient justification for the granting of an interim injunction.

Does Mr Cunningham have a strong claim for relief against cancellation?

[73]     It is well established that the Court may grant relief against cancellation even without deciding whether there has been a breach and/or whether the lessor has the right to cancel or has correctly served the statutory notice.

[74]     The following factors are relevant to the exercise of the Court’s discretion:10

a)        Whether the breach was inadvertent or deliberate.  If deliberate, in the normal case relief should not be given.

b)        Whether  the  breach  was  caused  by  inadvertence  or  was  entirely

beyond the tenant’s control.

c)        Whether a tenant has made or will make good the breach of covenant and is able and willing to fulfil his obligations in the future.

d)       The landlord’s conduct.

e)        The personal qualifications of a tenant. f)        The financial position of a tenant.

g)        The gravity of the breach.

h)        Whether the breach has occasioned lasting damage to the landlord.

10     Studio X Ltd v Mobil Oil New Zealand Ltd, op cit.

[75]     At this stage it is difficult for me to assess the strength of the plaintiff’s case for relief against forfeiture, given my finding that there is a serious question to be tried as to whether he was or was not in fact in breach in the first place.  Suffice it to say that if the Judge at the substantive hearing were to accept the trustees’ version of events, Mr Cunningham’s case for relief would be weak.

Balance of convenience

[76]     The balance of convenience has often been described as the balance of the risk of  doing an injustice.  The Court is required to balance the injustice that will be caused to Mr Cunningham if he is prevented from being able to operate his business on Station Trophy Block as against the injustice to the trustees if its sheep farming operations are affected by an injunction which is later discharged.

[77]     In determining where the balance of convenience lies, the factors to which the Court usually has regard are:

a)        The adequacy of damages to both parties. b)    The status quo.

c)        The relative circumstances of the case.

d)       The relative strength of each party’s case.

e)        The effect on innocent third parties (not relevant in this case). f)       The conduct of the litigants.

[78]     Mr Whiteside submitted that in considering the balance of convenience, it was important to bear in mind that the trustees are legally entitled to possession of the relinquished paddocks, and that it is only by forfeiture of the Station Trophy Block lease that the deer can finally be removed and the trustees’ farming operation able to continue unimpeded.

[79]     He further submitted that Mr Cunningham has had ample time to remove his animals, and even if ultimately Mr Cunningham were to succeed in this proceeding, damages would be an adequate remedy.  His deer can all be run on Cox’s Downs land or on his other farm property.

[80]     Against that, if the interim injunction is granted then the trustees face another summer of being deprived of feed for their sheep.  The loss of feed is estimated to be costing the trustees $15,000 per annum.

[81]     I  have  carefully  considered  these  submissions.    They  have  some  force. However, after due reflection, I consider that the balance of convenience favours maintaining the status quo and enabling Mr Cunningham to continue his business in the  meantime.     Station  Trophy  Block  is  a  pivotal  part  of  Mr Cunningham’s operation.  Cox’s Downs is lower, flatter and largely covered in wilding pines.  It is ideal for keeping animals, but does not provide the attractive features for hunting that  overseas  clients  seek  and  which  they find  in  Station Trophy Block.    As  I understand  it,  the  loss  of  Station  Trophy  Block  will  bring  Mr Cunningham’s business, at least in the Mt Cook region, to an end.

[82]     Mr Cunningham has given an undertaking as to damages.  Evidence as to his financial position suggests that he does have sufficient assets to enable him to pay damages for losses sustained by the trustees as a result of the trustees not being able to take vacant possession of Station Trophy Block in the meantime.

Overall justice

[83]     Under this heading, Mr Whiteside asked me to take into account what he said was disqualifying conduct by Mr Cunningham.  When Mr Cunningham first issued these proceedings, he was granted an interim interim injunction pending the hearing of the application before me.  According to the trustees, after obtaining that interim interim injunction, Mr Cunningham cut a chain on a padlock on the gate to a service lane   on   Cox’s   Downs   which   is   vital   to   the   trustees’   farming   operations. Mr Whiteside submitted this was the action of a man who behaves as if he is beyond the law.

[84]     Mr Cunningham  did  not  answer  this  allegation  in  his  reply  affidavit. However, Mr Till submitted that under the express terms of the Cox’s Downs lease, Mr Cunningham was entitled to access.

[85]     This is but just one of the many claims and counterclaims that appear to have been made over the years between the parties.

[86]     As in any dispute, there is doubtless fault on both sides.

[87]     It would be wrong of me to express any concluded views, and I do not do so. There is evidence yet to come, and none of the affidavit evidence I have read has been subjected to cross-examination.   However, my general impression of the evidence  adduced  to  date  is  that  Mr Cunningham  may  well  on  occasion  have behaved unreasonably.

[88]     Because that impression is of necessity a tentative one only, it would be unjust on those grounds to deny Mr Cunningham an interim injunction when there is a serious question to be tried and when the balance of convenience does favour him.

[89]     The   injunction   will   however   be   granted   on   terms:   namely   that

Mr Cunningham is to remove all of his stock from the relinquished paddocks by 4

November 2011.

[90]     If, after that date, any Cunningham stock are seen on Mt Cook Station land (other than Station Trophy Block), the trustees are entitled to destroy that stock, but only after Mr Cunningham has first been given an opportunity to do so himself.

[91]     Mr Cunningham’s conduct between now and the hearing of the substantive case could well be critical.

Outcome

[92]     The application for an interim injunction restraining the defendants from entering onto or otherwise interfering with Mr Cunningham’s quiet enjoyment of the Station Trophy Block is granted, subject to the following conditions:

[i]       Mr Cunningham is to remove all stock owned by him from Mt

Cook Station (other than stock on Station Trophy Block) by 4

November 2011.

[ii]      In   the   event   any   Cunningham-owned   stock   remain   on

Mt Cook Station (other than Station Trophy Block) after 4

November 2011, the following procedure is to apply:

1.  The trustees are to notify Mr Cunningham by email of the presence of the stock, providing him with as many specifics/particulars as is practically possible.

2.  Mr Cunningham will have 48 hours from the time of the transmission of the email to remove the stock.

3.  Before coming onto the trustees’ property within the 48- hour time period, Mr Cunningham must notify the trustees of his intention to enter the property and the date and time at which he will be doing so.

4.  In the event of Mr Cunningham taking no action within the requisite 48 hours, the trustees are entitled to destroy the animals themselves.

Costs on application

[93]     My provisional view on costs is that these should be reserved and be costs in the cause.

[94]     If, however, the parties have a different view then submissions are to be filed within 15 working days.

Solicitors:

Petrie Mayman Clark, Timaru

Counsel: N Till QC, Christchurch
Wynn Williams & Co, Christchurch