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 the  Court should  be made on  the basis  that the

plaintiffs pay all arrears due to the power company and take responsibility for paying future power bills. As electricity has not been disconnected to the Property in its entirety (a hairdressing business operating within the Property remains connected) I understand there will be no issue of a reconnection fee.

[9]    Mr Smith advised the Court that if a relevant electricity account is in the name of the first defendant, there may be a practical issue in that it has no cashflow and would not be in a position to pay any arrears.

[10]   Counsel were in agreement that it would be appropriate for the Court to make the first order sought and that counsel would seek to resolve the remaining practical issues relating to payment of arrears and ensuring relevant electricity accounts are in the appropriate names.

[11]   I am satisfied that there is a serious question to be tried between the parties. I am also satisfied that the balance of convenience favours preserving the status quo and that it is in the interests of justice to grant interim injunctive relief.1

[12]   I therefore make 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. Leave is reserved to any party to apply to the Court for further directions if necessary.

[13]   Mr Fowler does not pursue the second order set out above on an urgent basis. He is content that it is dealt with in the usual way as part of the plaintiffs’ interlocutory application for injunction against the second, third and fourth defendants.

1      Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 140 (HC). See also NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90 at [12]; and Intellihub v Genesis Energy Ltd [2020] NZCA 344 at [23].

[14]Costs are reserved.

McQueen J

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt Morrison Mallett, Auckland

Fanselows, Wellington