Harvey v Heeman

[2019] NZHC 3131

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2016-442-50

[2019] NZHC 3131

BETWEEN

GLENN RAYMOND HARVEY

Plaintiff/Respondent

AND

DARREN HEEMAN and DEANNA MARIA HEEMAN

Applicants/Defendants

On the papers:
Counsel:	S J Zindel for Applicants/Defendants
Judgment:	29 November 2019

JUDGMENT OF CHURCHMAN J

Background

[1]                 On 26 November 2019, the applicants/defendants (the Heemans) filed an interlocutory application without notice seeking an interim injunction to restrain the Court’s Sale Order of 8 October 2019 authorising the respondent/plaintiff (Mr Harvey) to seize all land and chattels of the defendants and also to restrain an auction of land owned by the defendants due to take place on 12 December 2019 at 1:00 pm, the land in issue being LOT 2, deposited plan 484479 recorded in certificate of title 686586.

[2]                 In support of their application, the Heemans have sworn a joint affidavit dated 22 November 2019. That affidavit referred to a judgment obtained from Simon France J on 7 September 2017 by Mr Harvey against the Heemans, and the partially successful appeal by the Heemans to the Court of Appeal. The decision of the Court of Appeal is dated 24 October 2018.1

1      Heeman v Harvey [2018] NZCA 449.

HARVEY v HEEMAN & ANOR [2019] NZHC 3131 [29 November 2019]

[3]                 As a result of the Court of Appeal decision, Mr Harvey now owes the Heemans’ costs in the sum of $18,034.31.

[4]                 Also, as a result of the Court of Appeal decision, Mr Harvey will owe the Heemans a sum by way of compensation representing the value of 3.958 hectares of land that the Court of Appeal found Mr Harvey had agreed to sell the Heemans but were not conveyed with the title.

[5]                 The High Court has yet to determine the quantum of that compensation. The Heemans contend that the value of the 3.958 hectares in respect of which the Court directed they be compensated, together with the costs award in their favour in the Court of Appeal, will go some considerable way towards satisfying, if not completely extinguishing, the judgment debt of $81,151.46 together with interest that Mr Harvey is attempting to enforce by way of sale order. There is considerable force in that proposition.

[6]                 The Heemans’ joint affidavit confirms that they have been in negotiations with Mr Harvey as to settlement, including putting forward a settlement offer available for acceptance up until 25 November 2019. Although the affidavit does not specify it, I infer that the offer was not accepted and that this led to the issue of these proceedings.

[7]                 The affidavit also deposes that the Heemans were not aware that a sale order had been granted until 20 November 2019, and that they did not realise Mr Harvey had scheduled an auction for the land until 21 November 2019 when Mr Heeman received a Summit Real Estate circular in his letterbox advising of an auction being scheduled for 12 December 2019.

[8]                 The sole reason advanced for the interim injunction application proceeding on a without notice basis, is that the property is to be auctioned on 12 December 2019, and that if the auction proceeds, the decision of the Court of Appeal remitting the matter back to the High Court for the fixing of compensation, together with the costs award would be rendered nugatory.

Analysis

[9]                 Rule 7.46 of the High Court Rules 2016 (HCR) permits a Court to deal with an application without notice only with the Judge is satisfied that requiring the applicant to proceed on notice would cause undue delay or prejudice to the applicant.

[10]              In this case, the Heemans propose that the application be served on Mr Harvey on a “Pickwick” basis. Such an application is served at the time of filing so that the defendant can be represented in Court when the application without notice is heard.2

[11]              While serving an application for an interim injunction on a Pickwick basis is better than not serving it at all, it is no substitute for a respondent being able to reply fully and properly.

[12]              Given that the proposed auction is not scheduled until 12 December 2019, there would seem to be sufficient opportunity for it to be served and the injunction application called and dealt with at short notice prior to 12 December.

[13]              I direct that, if it has not occurred already, the Heemans are to serve Mr Harvey with a copy of the interim injunction application, memorandum of counsel, joint affidavit in support and undertaking as to damages.

[14]              The serving of the injunction application will give Mr Harvey the opportunity to take legal advice. On the basis of the information provided to the Court thus far (and in the absence of any contradicting information), it would seem that grounds exist for the granting of an interim injunction on the basis that the outcome of the Court of Appeal decision means that Mr Harvey will owe the Heemans a sum that should be deducted from the judgment sum he has obtained against the Heemans and may possibly even exceed that sum.

[15]              The parties may be able to agree an outcome which avoids the expense of having to argue a defended interim injunction and the liability for costs that would occur if the injunction application is unsuccessfully defended.

2      See Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd [1972] 1 WLR 1213, [1972] 3 All ER 384.

[16]              Accordingly, the without notice application is dismissed, all the documents filed in support of the interim injunction are to be forthwith served on Mr Harvey via his solicitor (Duncan King Solicitors, Auckland) with a copy to his counsel, Michael Keall, Barrister, Auckland.

[17]              The time for filing a notice of opposition and any affidavit is abridged and fixed as 5:00 pm, 4 December 2019.

[18]              The interim injunction application will be allocated a two-hour hearing in the High Court at Wellington on either 5, 6, 9, 10 or 11 December 2019, with the exact date to be notified by the Registrar to counsel as soon as possible.

Churchman J

Solicitors:
Zindels, Nelson for Defendants