Mackintosh v Thomas

[2016] NZHC 914

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-000754 [2016] NZHC 914

BETWEEN

J B MACKINTOSH AND M C HALL

First Plaintiffs and Counterclaim
Defendants

AND

M W REED Second Plaintiff

AND

S T REED Third Plaintiff

AND

P D THOMAS
First Defendant and Counterclaimant

AND

E M MARR Second Defendant

AND

A M SYME Third Defendant

Hearing:	5 May 2016 (On the papers)
Appearances:	K Clay for Second Defendant
Judgment:	5 May 2016
Reissued:	6 May 2016 and 9 May 2016

JUDGMENT OF DUNNINGHAM J

ON APPLICATION WITHOUT NOTICE FOR INTERIM INJUNCTION

BY SECOND DEFENDANT AGAINST SECOND PLAINTIFF

[1]      The second defendant, Mrs Eleanor Mary Marr, is applying for an interim injunction, without notice, restraining the second plaintiff, Mark Wreford Reed from

planting the sowing out of property located at Yaldhurst.

MACKINTOSH AND HALL v REED [2016] NZHC 914 [5 May 2016]

[2]      The application arises in the context of a proceeding which has been before the High Court since 2012 and which was commenced by Norman Dean Thomas. Mr Thomas’ subsequent death during the course of the proceeding led to a number of claims being made against his estate.  Mrs Marr is a daughter of the deceased and a residuary beneficiary under his will.

The mediated heads of agreement

[3]      Eventually the parties agreed to mediate the dispute and there was a lengthy mediation before Mr Robert Fisher QC, over some four days, which resulted in a signed heads of agreement dated 20 September 2015.

[4]      The parties acknowledge that the heads of agreement is incomplete and there have been continuing negotiations to finalise the precise mechanisms for the implementation of its terms, with a view to these being incorporated in a comprehensive agreement.   It is expected that there will be a further meeting on Monday, 16 May 2016 in an endeavour to finalise this agreement, at least as between counsel.

[5]      Under that heads of agreement, Mrs Marr receives, amongst other assets, the property of the deceased which is commonly referred to as Yaldhurst and which is located in Ryans Road, Christchurch, adjacent to the airport.  The property had been occupied by Mr Reed, and, consistent with the agreement, Mr Reed had effectively (albeit not legally), vacated Yaldhurst as at the end of March 2016.

The alleged breach of the heads of agreement

[6]      However, on or about 19 April 2016, Mr Reed carried out cultivation of several paddocks on Yaldhurst in preparation for sowing/planting crops.   He took this no further when objection was raised on behalf of Mrs Marr and it was agreed that  he  would  refrain  from  carrying  out  the  further  planting  on  the  property. However, that position changed yesterday when counsel for Mr Reed advised, on

4 May 2016, that Mr Reed is intending to carry out sowing/planting of crops on

Friday 6 May 2016.

[7]      Mrs Marr’s evidence is that if Mr Reed plants crops tomorrow or any time soon, it will mean he will inevitably require use of Yaldhurst for a further 12 months. That will mean that Mrs Marr will not get the benefit intended under the heads of agreement, which is to receive the Yaldhurst land, and to determine how it should be used, including to farm the land herself or to lease the farm for a higher commercial rental than at present.

[8]      The application is made without notice.   An undertaking as to damages is filed.  The appropriate certification is given by counsel and a draft order for interim injunction is attached which seeks the following orders:

(a)      the second defendant, Mark Wreford Reed is to take no further steps in the sowing/planting of crops at the property on Ryans Road and Greys Road, Yaldhurst (identifier CB 13A/1098 and CB 7A/401) which property is the subject of this proceeding, or any other steps that would otherwise necessitate Mark Wreford Reed or his entities remaining on that property, until further order of the Court;

(b)      the costs of this application be reserved.

Orders and directions

[9]      This application was received shortly before close of business on Thursday. While I have received advice from counsel that Mr Reed now agrees not to plant tomorrow, that is all that is agreed.  I am therefore satisfied it is appropriate to make the interim injunction order sought on a temporary basis but to arrange for an urgent hearing on the application.

[10]     Registry staff are to arrange with counsel when this can occur.  I can hear the matter, tomorrow, Friday 5 May.   Alternatively, it could be heard at 11.45 am or

3.00 pm Tuesday 10 May, or at any time on Wednesday 11 May or Thursday 12 May.

Solicitors:

K Clay, Christchurch