Doxcon Pharmaceuticals Limited v TasmanDairy Limited

[2015] NZHC 295

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