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 favours the applicants. As matters presently stand, the applicants are not entitled to enter the premises. Because the respondents have not replied to the 26 March letter, the applicants are in the dark as to exactly what items are being removed and what damage is resulting from the removal of items. Mr King was not able to point to any factor that would significantly and negatively impact the respondent in the event that interim relief was granted. Not surprisingly, Mr King asks for time to review the proceedings and take instructions.

[9]    Standing back, I am satisfied that the overall interests of justice favour granting interim relief until 11 am on Friday 4 April 2025. I will then hear further from counsel.

[10]   I record my concern that the parties have not been able to resolve this dispute by either agreement or with the assistance of an independent and appropriately experienced referee. I strongly encourage the parties to re-open the lines of communication as regards items that are genuinely in dispute.

Order made

[11]I made an order in the following terms:

(i)This evening, on a telephone conference, I heard an urgent application filed by CATHERINE KAREN DWAN and

MATTHEW  STEPHEN   DWAN   as   trustees   of   the Valiant Pistoleros Trust seeking an interim injunction to restrain TRUFA AOTEAROA LTD from continuing to remove any items from the property at 31 Rands Road, Rangiora (the premises) that are, or arguably are, landlord’s fixtures or fixtures that form part of the land. Having heard from Mr Campbell, for the applicant, and Mr King, for the respondent (served on a Pickwick basis), I granted an interim injunction preventing the respondent lessee from removing the landlord’s fixtures or items that are arguably landlord’s  fixtures  from  the  premises. That order does not include the truffle seedlings or any items clearly identified as chattels belonging to the respondent lessee.

(ii)The interim injunction will remain in place until 11 am Friday, 4 April 2025 when a further hearing will be convened to determine whether the orders should continue beyond that date.

(iii)Costs are reserved.

...................................................

Eaton J

Solicitors:

Wynn Williams, Christchurch Lane Neave, Christchurch