Cunningham v Butterfield HC Timaru CIV 2011-476-000400

[2011] NZHC 1609

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV 2011-476-000400

BETWEEN  NEVILLE JOHN CUNNINGHAM Plaintiff

ANDJOSEPH GORDON BUTTERFIELD, EVAN BOYD LINDSAY HILSON AND CATRIONA MACKAY BEATOCK BAKER

Defendants

Hearing:         25 August 2011 (By Telephone) Counsel:        N Till QC for Plaintiff

P F Whiteside for Defendants

Judgment:      26 August 2011

JUDGMENT OF FOGARTY J

[1]      The plaintiff is a professional hunting guide and operates a trophy hunting business on Mt Cook Station and Cox’s Downs.  The defendants are the trustees of the estate of the late Mr DMC Burnett.  The statement of claim seeks:  a declaration that a notice of re-entry and cancellation of lease is invalid;  second, an injunction restraining the defendants from interfering with the plaintiff’s quiet enjoyment of the land subject to the lease the plaintiff relies on, both Mt Cook Station and Cox’s Downs, and as an alternative a relief against forfeiture.

[2]      The plaintiff has filed an application for interim injunction to enable him to continue his business in the meantime.  Mr Whiteside needs time to file affidavits before he is ready to argue the interim injunction.

[3]      The  parties  have  agreed  a  timetable  whereby  the  plaintiff  will  provide financial information supporting the undertaking for damages by 29 August.   The

CUNNINGHAM V BUTTERFIELD AND ORS HC TIM CIV 2011-476-000400 26 August 2011

defendants will file affidavits in reply by 2 September.  The parties will be ready for a hearing from Tuesday, 13 September.

[4]      Mr Whiteside has a fixture on 12 September, another interim injunction.  It would appear that a High Court Judge may well be available later that week to hear this application.

[5]      Given  the  delay  in  hearing  of  the  application  for  interim  injunction, Mr Till QC   sought   an   interim   interim   injunction.      This   was   opposed   by Mr Whiteside.   He argued that it was not necessary as his clients were unable to interfere anyway with the plaintiff carrying on his business and attending to the stock. This was disputed by Mr Till.

[6]      There will be an interim interim injunction that the defendants or their agents or employees cannot in any way interfere with the activities of the plaintiff on the land that is the subject of the dispute.  This order remains in force until further order of this Court, likely to be made at the end of the hearing of the application for the interim injunction or upon delivery of the judgment following that hearing. This order is made out of an abundance of caution and in my view is consistent with Mr Whiteside's submission that his parties cannot interfere anyway.

[7]      Costs are reserved.

Solicitors:

Petrie Mayman Clark, Timaru, for Plaintiff

Wynn Williams, Christchurch, for Defendants