Heartland Seven Investments Limited v Waharoa Industrial Park Limited

[2014] NZHC 220

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-28 [2014] NZHC 220

BETWEEN  HEARTLAND SEVEN INVESTMENTS LIMITED

Applicant

ANDWAHAROA INDUSTRIAL PARK LIMITED

First Defendant

ICEPAK NEW ZEALAND LIMITED Second Defendant

Hearing:                   19 February 2014

Counsel:                  D P Shore and R D Dhanjee for the Applicant

K E Cornege and A J Iles for the Respondent

Judgment:                19 February 2014

ORAL JUDGMENT OF BROWN J

Solicitors:      McCaw Lewis Limited, Hamilton

Tompkins Wake, Hamilton

HEARTLAND SEVEN INVESTMENTS LTD v WAHAROA INDUSTRIAL PARK LTD [2014] NZHC 220 [19

February 2014]

[1]      This application for an  interim injunction necessitates an urgent decision because the Annual General Meeting of Icepak is to be held on Saturday 22 February

2014.  In those circumstances I will today make orders on the application and I will deliver my written reasons for decision early next week.

[2]      I first record the undertaking by the defendant which is in the notice of opposition  that  the  defendant  undertakes  not  to  sell,  transfer  or  mortgage  its remaining 200,000 Icepak shares (or negotiate for such matters) without the consent of the participants named in the Letter of Understanding pending resolution of the dispute as to the enforceability of the Letter of Understanding or the 15 May 2014 whichever the sooner occurs.

[3]      I make the following orders:

(a)      I join Icepak as a defendant.  I do that for the purpose of making the order about registration of transfers;

(b)      Pending the trial in this proceeding or 15 May 2014, whichever first occurs, the Board of Icepak shall refrain from registering the two transfers of 100,000 shares from the defendant to GIL and from the defendant to ISL;

(c)      Pending the trial in this proceeding or the 15 May 2014, whichever first occurs, neither the defendant nor any other person shall exercise the votes in connection with the 200,000 shares in Icepak which the defendant has purported to sell to GIL and ISL;

(d)      Pending the trial in this proceeding or 15 May 2014, whichever first occurs, in the event that the defendant has occasion or opportunity to exercise the votes in connection with the remaining 200,000 shares it holds in Icepak in relation to either of the type of transactions referred to in paragraph (b) of the Letter of Understanding, the defendant shall not exercise those votes in opposition to a unanimous voting position taken by the other five participants to the Letter of Understanding.

For the avoidance of doubt a vote on the election of directors is not within the scope of the restraint in that previous sentence;

(e)      Leave is reserved to the plaintiff, defendant or Icepak to apply further in the event that a question arises as to whether a transaction comes within the type of transaction in paragraph (b) of the Letter of Understanding.  That is intended to address the situation of the limited partnership; and

(f)      Leave is reserved to the plaintiff, the defendant or Icepak to apply for further directions in the event that there is any relevant significant change in circumstances from that reflected in my reasons for judgment.

[4]      Costs will be reserved.

Brown J