Dwan v Trufa Aotearoa Ltd - [2025] NZHC 756

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2025-409-145

[2025] NZHC 756

BETWEEN
CATHERINE KAREN DWAN AND MATTHEW STEPHEN DWAN

Applicants

AND

TRUFA AOTEAROA LTD

Respondent

Hearing: 1 April 2025 via telephone conference

Appearances:

S D Campbell and J W Murison for Applicant M D W King for Respondent

Judgment:

2 April 2025

JUDGMENT OF EATON J

(application for interim injunction)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

DWAN v TRUFA AOTEAROA LTD [2025] NZHC 756 [2 April 2025]

Introduction

[1] Catherine and Matthew Dwan, acting in their capacities as trustees of Valiant Pistoleros Trust, apply without notice for an interim injunction preventing Trufa Aotearoa Ltd from continuing to remove any items of property from 31 Rands Road, Rangiora (the premises) that are arguably landlord’s fixtures that form part of the premises.

[2] I dealt with the application on an urgent basis after business hours and by way of a telephone conference. Messrs Campbell and Murison attended the conference on behalf of the applicants. The proceedings have been notified to the respondents on a Pickwick basis and I am grateful for Mr King to make himself available at such short notice to attend the telephone conference.

[3] I granted the application in the terms recorded below. I very briefly set out my reasons.

Background

[4] I have reviewed the affidavit evidence of Matthew Dwan and the applicants’ supporting memorandum. I observe that an undertaking as to damages has been provided.

[5] The respondent is the lessee under a deed of lease dated 1 April 2022 in relation to the premises the applicants own. The parties have fallen into dispute following termination of the deed of lease as to what items are chattels, tenant’s fixtures, and landlord’s fixtures and fittings.

[6] The applicant landlord is concerned that as late as yesterday afternoon and on instructions from the respondent, trucks are continuing to remove property that is owned by the applicant landlord and that in the process of removing property, the respondent is causing damage to the property.

Discussion

[7] The applicants’ position both factually and legally is fully set out in a letter dated 26 March 2025 sent by the applicants’ solicitors. That letter identifies the various items in dispute. The facts as alleged in that letter have been adopted by Mr Dwan as the truth. The respondents have failed to reply to that letter. Having reviewed the letter and the other supporting material, I am satisfied that there is a serious question to be tried. That question turns on the point of demarcation between a chattel and a fixture. It further turns on s 266 of the Property Law Act 2007 and whether property removed from the premises falls within the definition of “any trade, ornamental or agricultural fixture…that the lessee has affixed to any leased premises”.

[8] I am satisfied that the balance of convenience…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 756
Decision Date: 2 April 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Catherine Karen Dwan and Matthew Stephen Dwan, acting as trustees of the Valiant Pistoleros Trust, sought an interim injunction against Trufa Aotearoa Ltd. The applicants aimed to prevent the respondent from removing any items from 31 Rands Road, Rangiora, which they claimed were landlord’s fixtures or part of the property. The dispute arose from the termination of a lease, leading to disagreements about which items were chattels, tenant’s fixtures, or landlord’s fixtures. The applicants argued that the respondent was causing damage while removing property from the premises.

The primary legal issue was whether the items being removed by the respondent constituted landlord’s fixtures. The applicants relied on the Property Law Act 2007 to argue that certain items were affixed fixtures, which the respondent was not entitled to remove. The court needed to determine if the applicants had established a serious question to be tried and whether the balance of convenience favoured granting the interim injunction. The applicants also needed to demonstrate that they had provided an undertaking as to damages.

The court granted the application for an interim injunction, allowing the applicants to prevent the respondent from removing any items that were arguably landlord’s fixtures. The injunction was set to remain in place until 11 am on Friday, 4 April 2025, pending a further hearing. The court found that the applicants had demonstrated a serious question to be tried and that the balance of convenience favoured them. The respondents had failed to respond to the applicants' claims, which further supported the granting of the injunction. The court also expressed concern over the parties' inability to resolve the dispute through negotiation or referral to an independent referee.

The final order provided that Trufa Aotearoa Ltd was restrained from removing any items from the premises that were landlord’s fixtures or arguably landlord’s fixtures, excluding truffle seedlings and items clearly identified as chattels belonging to the respondent. The interim injunction would remain in effect until the further hearing on 4 April 2025, with costs reserved.

Orders