Doxcon Pharmaceuticals Limited v TasmanDairy Limited

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2-15-404-000299 [2015] NZHC 295

BETWEEN
DOXCON PHARMACEUTICALS

LIMITED Plaintiff

AND

TASMANDAIRY LIMITED First Defendant

SUPERMEGA MARKETING LIMITED Second Defendant

Hearing: 26 February 2015

Counsel:

D W Grave for the Plaintiff
B L Martelli for the Defendants

Judgment:

26 February 2015

(ORAL) JUDGMENT OF DUFFY J

Counsel: D W Grove, Auckland

Solicitors: Heaney and Partners, Auckland

DOXCON PHARMACEUTICALS LTD v TASMANDAIRY LTD [2015] NZHC 295 [26 February 2015]

[1] The plaintiff, Doxcon Pharmaceuticals Ltd (“Doxcon”) is in Court today seeking interim relief to prevent the first defendant, Tasmandairy Ltd (“Tasmandairy”) from taking steps, pursuant to a notice of intention to cancel lease for breach of the covenant to pay rent, to enter and take possession of premises that Doxcon leases from Tasmandairy (“the premises”).

[2] Tasmandairy has issued two such notices, the most recent one being

December 2014.

[3] At this time, I propose to deliver a result decision, with reasons to follow.

[4] From what I have heard today, I am satisfied that Doxcon is entitled to interim relief. I am also satisfied that there is real factual dispute between the parties, which requires urgent resolution. Until the disputed facts are resolved, it will be difficult for the Court to ascertain the legal rights of the parties. It seems to me that the best course for this proceeding would if the substantive hearing could be allocated a priority fixture, with the parties being given a timetable to ensure that the proceeding was speedily progressed towards the hearing date.

[5] Therefore, I propose to make interim relief for a short term, with the matter being called in the Duty Judge List for mention, so that the Duty Judge can ensure that the matter is progressing.

[6] I make the following interim relief order:

(a) The first defendant, Tasmandairy is restrained from preventing the plaintiff, Doxcon, from re-entering and occupying the premises in accordance with the terms of the lease until Friday, 13 March 2015, or further order of the Court, whichever is the sooner.

[7] This matter is to be called for mention in the Duty Judge List at 10.00 am on Thursday, 12 March 2015. At that time, I envisage the parties may have come to some decision regarding a timetable to ensure that the substantive matter can be brought on for hearing at the earliest possible date.

[8] Leave is reserved to the parties to come back to me for a telephone conference, should the need arise.

[9] The parties are agreed that costs are to be reserved.

Duffy J

CaseChat Overview and Summary

Doxcon Pharmaceuticals Limited sought interim relief against TasmanDairy Limited to prevent it from entering and taking possession of premises Doxcon leased from TasmanDairy. TasmanDairy had issued two notices of intention to cancel the lease for breach of the covenant to pay rent, the most recent being in December 2014. The court was required to determine whether Doxcon was entitled to interim relief and whether there was a real factual dispute between the parties that required urgent resolution. The court also needed to decide on the appropriate duration of the interim relief and the urgency of the substantive hearing.

The court found that Doxcon was entitled to interim relief, as there was a real factual dispute between the parties that required urgent resolution. The court believed that until the disputed facts were resolved, it would be difficult to ascertain the legal rights of the parties. The court proposed to make interim relief for a short term, with the matter being called in the Duty Judge List for mention to ensure that the matter was progressing. The court also suggested that the substantive hearing could be allocated a priority fixture, with the parties being given a timetable to ensure that the proceeding was speedily progressed towards the hearing date.

The court made an interim relief order, restraining TasmanDairy from preventing Doxcon from re-entering and occupying the premises in accordance with the terms of the lease until Friday, 13 March 2015, or further order of the Court, whichever was the sooner. The matter was to be called for mention in the Duty Judge List at 10.00 am on Thursday, 12 March 2015. The parties were given leave to come back to the court for a telephone conference if the need arose, and costs were reserved.

The court's decision provided Doxcon with the interim relief it sought and ensured that the substantive hearing would be progressed towards an early date. The court's reasoning was based on the need to resolve the factual dispute between the parties urgently, and to ensure that the legal rights of the parties were ascertained as soon as possible.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	26 February 2015
Counsel:	D W Grave for the Plaintiff B L Martelli for the Defendants
Judgment:	26 February 2015