First Sovereign Trust Limited v Infinity Foundation Limited

[2015] NZHC 2130

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-686 [2015] NZHC 2130

UNDER

the Contracts (Privity) Act 1982

IN THE MATTER

of a proceeding for breach of contract

BETWEEN

FIRST SOVEREIGN TRUST LIMITED First Applicant

NZL LOCAL LIMITED, NZL OFFICE LIMITED AND NZL MARQUIS LIMITED

Second Applicants

AND

INFINITY FOUNDATION LIMITED Respondent

Hearing:	31 August 2015
Counsel:	M S Smith and S T Cottrell for Applicants A G Sherriff and S A Barker for Respondent
Judgment:	31 August 2015

ORAL JUDGMENT OF CLIFFORD J

[1]      This is an urgent, on notice, application by the first and second applicants for a mandatory injunction requiring the respondent, Infinity Foundation, to revoke and extend notices of surrender of venue licences under the Gambling Act 2003 that would otherwise, the applicants say, take effect at midnight tonight.

[2]      I  was  going  to  give  a  full  oral  judgment.    However,  in  light  of  the complexities of the statutory scheme I will not try to do that because I might get that

scheme confused, if not wrong.

FIRST SOVEREIGN TRUST LIMITED v INFINITY FOUNDATION LIMITED [2015] NZHC 2130 [31 August

2015]

[3]      I am satisfied, however, that this is not an appropriate occasion for this Court to give mandatory relief in the nature sought.  The contractual position is murky, to say the least.  I am not persuaded that damages are not an adequate remedy.  And I am aware that I am being asked to order Infinity to effectively withdraw and extend surrender notices for the relevant class 4 venue licences where the Department is on record  as  having  processed  the  notices  and  altered  their  records  to  reflect  the surrender of those licences.

[4]      I have also taken account of Mr Sherriff’s submission as to the possible effects under s 118.   I recognise that as a matter of law that would also appear to stand in the way of granting the relief sought.  Whilst I am not persuaded that is the case, I acknowledge the point may be arguable.

[5]      In declining relief I accept that the email from Infinity to Sovereign at page

68 of the attachments to Mr Jones’ affidavit would appear to give a view from Infinity of the nature of its contracts with the venue operators which is at odds with what has been advanced by Mr Sherriff today.  Nor do I find the repudiation theory that Mr Sherriff advanced at all appealing, particularly in light of the way Infinity gave notice of surrender to the Department.

[6]      But I put that to one side at this point.  I reiterate the position that I think the contractual position is unsure, that damages may well be an adequate remedy and that the statutory position, vis a vis the relief I have been asked to give, is also unclear.

[7]      I am therefore not satisfied I should take the exceptional step of ordering mandatory relief.

[8]      The point has to be made, moreover, that damages in favour of either party will – at the end of the day – be a cost to the benefits the Gambling Act intended to be distributed to the public.  If there are issues with contractual clarity, they perhaps should be dealt with in another forum.

[9]      I will give written reasons in the next couple of days.

[10]     Costs will lie where they fall in this case.

“Clifford J”

Solicitors:

GCA Lawyers, Christchurch for Applicants

Buddle Findlay, Wellington for Respondent