Outdoor Action & Adventure Limited v New Zealand Transport Agency

[2018] NZHC 3464

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-2764

[2018] NZHC 3464

UNDER

rule 7.53 of the High Court Rules 2016

IN THE MATTER OF

an application for injunction

BETWEEN

OUTDOOR ACTION & ADVENTURE LIMITED

Plaintiff

AND

THE NEW ZEALAND TRANSPORT AGENCY

First Defendant

MINISTER OF LAND INFORMATION

Second Defendant

Hearing:

21 December 2018

Appearances:

R D Butler, J Nedeljkov & I B Kwan-Parsons for Plaintiff J A McMillan & C M Sheard for First Defendant

ENC Lay & K F Gaskell for Second Defendant

Result:

24 December 2018

RESULT JUDGMENT OF DUFFY J

Solicitors/counsel:

Anderson Creagh Lai, Auckland R D Butler, Barrister, Auckland Kensington Swan, Auckland

OUTDOOR ACTION & ADVENTURE LTD v THE NEW ZEALAND TRANSPORT AGENCY & MINISTER OF LAND INFORMATION [2018] NZHC 3464 [24 December 2018]

[1]                 The plaintiff is a tenant of premises situated on land owned by the Crown and occupies those premises under a lease from the Crown (the lease). This lease requires all disputes between the landlord and tenant to be resolved by arbitration.

[2]                 The plaintiff contends that the Crown and its agent the New Zealand Transport Agency are interfering with the covenant for quiet enjoyment contained in the lease. Accordingly, the plaintiff seeks interim relief in this Court against the defendants pursuant to the Arbitration Act 19961.

[3]                 The plaintiff has named the second defendant as the Chief-Executive of Land Information, as this was the person who signed the lease on behalf of Her Majesty The Queen. However, if the plaintiff is to pursue a claim against the Crown for breach of the lease the appropriate defendant is either the Minister of Land Information or the Attorney-General. At the hearing when the matter was raised Crown Counsel suggested the appropriate defendant should be the Minister of Land Information. The plaintiff agreed to the substitution of the Minister as second defendant. Accordingly, I directed that the substitution take effect. Henceforth, the second defendant is to be referred to as the Minister of Land Information.

[4]                 As initially sought, the scope of the interim relief was to apply to proposed actions (the roadworks) to be undertaken: (a) on Rosedale Road North Shore Auckland City, which is a public roadway adjoining the plaintiff’s premises; and (b) on the block of land on which those premises are situated (the demolition works).

[5]                 During the course of the hearing it became clear that the demolition works were not intended to be undertaken until 7 April 2019. The first defendant undertook not to take any action in relation to the demolition works until 7 April 2019, which removed the need for the Court to make orders as to interim relief now. This aspect of the application can therefore be adjourned to a later date (to be identified in the reasons judgment) should the need for such consideration arise.

1      See Clause 9 Schedule 1 of the Arbitration Act 1996.

[6]                 Accordingly, the sole focus of the need for interim relief now relates to the proposed roadworks. Having carefully considered the matter I am satisfied that interim relief to restrain the proposed roadworks should be refused.

[7]Full reasons for my decision will follow.

Duffy J