Patel v Kelson General Store (1984) Limited - [2022] NZHC 2862

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-208

[2022] NZHC 2862

BETWEEN ILESH PATEL, RASHMI PATEL, GIRISH PATEL AND JAYA PATEL
Plaintiffs

AND

KELSON GENERAL STORE (1984) LIMITED

First Defendant

PUSHPAVATI PATEL
Second Defendant

MAJOR DRIVE PROPERTIES LIMITED
Third Defendant

PETER ANDREW DOWELL

Fourth Defendant

Teleconference: 2 November 2022

Appearances:

R J B Fowler KC and D G Dewar for Plaintiffs T Smith for First and Second Defendants

J J Pereira for Third and Fourth Defendants

Judgment:

2 November 2022

JUDGMENT OF McQUEEN J

[1] The plaintiffs have applied for urgent injunctive relief to restore electricity supply to the property at 35–37 Major Drive, Kelson (the Property). Electricity supply was disconnected yesterday afternoon.

[2] This issue arises in the context of longstanding proceedings between the plaintiffs and the first and second defendants, and more recent claims against the third and fourth defendants. The claims against the first and second defendants relate to

PATEL & ORS v KELSON GENERAL STORE (1984) LIMITED [2022] NZHC 2862 [2 November 2022]

interests in the Property as well as other properties and family businesses. The third and fourth defendants are more recently involved in these matters as the third defendant purchased the Property in September this year, and the fourth defendant is apparently the director and shareholder of the third defendant.

[3] The Property constitutes business premises and residential apartments. Two of the apartments are occupied by the third and fourth named plaintiffs and the 90-year- old father of two of the plaintiffs (and father-in-law of the second defendant) respectively. The plaintiff’s business DandiCandy Ltd is also an occupant. The evidence before the Court is that there is a separate meter for electricity provided to DandiCandy Ltd. The position is less clear as to the electricity arrangements for the apartments.

[4]A teleconference was convened this afternoon.

[5] In the plaintiffs’ interlocutory application without notice for an interim injunction they sought orders:

(a)Directing the defendants to take all reasonable steps to reinstate the electricity supply to the property at 35-37 Major Drive, Kelson forthwith.

(b)Restraining the defendants from any action that interferes with occupancy by the plaintiffs and their company DandiCandy Ltd, or the premises at 35-37 Major Drive, Kelson.

[6] Mr Fowler, for the plaintiffs, indicated that the first order was the matter of critical concern today.

[7] It became apparent through discussion with counsel that the first order sought was properly directed at the third and fourth defendants and not the first and second defendants, given the recent sale and purchase of property. There was no objection to Mr Fowler amending the order sought to refer only to the third and fourth defendants.

[8] Mr Pereira, for the third and fourth defendants, acknowledged receipt of service of the papers filed in relation to the urgent relief sought. He was able to convey that his clients had no objection to power being restored at the Property, but they submitted that any order made by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 2862
Decision Date: 2 November 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Patel v Kelson General Store (1984) Limited was presented, where the plaintiffs sought urgent injunctive relief to restore electricity supply to the property at 35–37 Major Drive, Kelson. The property was recently sold to Major Drive Properties Limited, with Peter Andrew Dowell as the director and shareholder. The plaintiffs, who previously had claims against the first and second defendants, now sought relief against the third and fourth defendants. The property constitutes business premises and residential apartments, occupied by family members and the plaintiff’s business, DandiCandy Ltd. The plaintiffs sought an interim injunction directing the defendants to reinstate the electricity supply and to restrain any action that interferes with their occupancy of the property.

The legal issues before the court involved the appropriateness of granting an interim injunction to restore the electricity supply to the property and determining the conditions under which this should be done. The court needed to consider whether a serious question was to be tried and whether the balance of convenience favoured preserving the status quo. Additionally, the court had to resolve the practical issues of payment of electricity arrears and ensuring that relevant electricity accounts were in the appropriate names.

The court found that there was a serious question to be tried between the parties and that the balance of convenience favoured preserving the status quo. It was in the interests of justice to grant interim injunctive relief. The court made an order directing the third and fourth defendants to take all reasonable steps to reinstate the electricity supply to the property at 35–37 Major Drive, Kelson forthwith, with leave reserved to any party to apply for further directions if necessary. The court reserved the matter of costs.

This case highlights the court's consideration of urgent relief in complex property disputes, balancing the interests of all parties involved and addressing practical issues such as payment of electricity arrears. The court’s decision underscores the importance of ensuring that the needs of occupants, especially those in residential properties, are met promptly in such disputes.

Orders