Philip Moore & Company Limited v Surridge

[2016] NZHC 2149

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-735 [2016] NZHC 2149

UNDER

The Judicature Act 1908

IN THE MATTER OF

a pre-proceedings interlocutory application seeking interim relief under the High

Court Rules made pursuant to that Act

BETWEEN

PHILIP MOORE & COMPANY LIMITED

Applicant

AND

ANNE JOSEPHINE SURRIDGE First Respondent

AND

MAIN SECURITY LIMITED Second Respondent

Hearing:	9 September 2016
Counsel:	S Iorns for Applicant
Judgment:	9 September 2016

JUDGMENT OF CLARK J

[1]      This application for an interlocutory injunction without notice came before me as Duty Judge late on the afternoon of Friday 9 September 2016.

[2]      The order sought is

…  an  order  granting  injunctive  relief  preventing  the  respondents  from interfering with the business operations at 42 Riverbank Road, Otaki.

[3]      The grounds on which the order is sought are that:

(a)       Proceedings are to issue against the first respondent seeking damages for   misleading   and   deceptive   conduct   in   trade   and   unlawful

PHILIP MOORE & COMPANY LIMITED v SURRIDGE [2016] NZHC 2149 [9 September 2016]

interference with the business of the applicant;

(b)      Interlocutory relief is required to prevent continued interference with

the applicant’s business which is causing irreparable harm;

(c)      The need for interim relief is urgent as major clients are unable to have their orders filled and if this does not occur the applicant will suffer irreparable harm;

(d)The  respondent  has  been  given  many  opportunities  to  cease  the unlawful interference with the applicants business; and

(e)       The balance of convenience is in favour of granting the order sought.

[4]      The documents filed in support of the application are to the effect that the first respondent is responsible for having the locks changed on the applicant’s business premises in Otaki and has retained the second respondent, Main Security, to prevent product from coming onto or leaving the premises.

[5]      An affidavit in support of the application has been filed by Marion Joan Pearson who is the sole director of the applicant.  The thrust of the evidence is that the first respondent’s actions are preventing the applicant from meeting the orders which are at the core of its business.   Ms Pearson states that one of their biggest customers is out of stock and frustrated to the point that serious damage to the relationship is occurring.   Ms Pearson deposes that without being able to supply customers with product they will suffer irreparable harm and the company may go under. All branches are running low on stock and need urgent deliveries.

[6]      Ms Pearson deposes that if the conduct is permitted to continue all entities within the group, except for those which the first respondent controls, will be “decimated”.

[7]      There is  also  an  affidavit  from Alwyn  O’Connor who is  a barrister  and

solicitor and was retained to act for the applicant in proceedings brought by the first

respondent in 2014.  The affidavit really speaks to a mediation agreement between the parties which is now, allegedly, being breached by the first respondent.

[8]      Mr Iorns, counsel for the applicant, has stated in his memorandum for the

Court:

The First Respondent has attempted to seize control of a company through deception.   Security guards are parked in front of the loading dock of the factor controlled by PMC.  They have been since the 5 September 2016. All the applicant seeks is an order preventing interference with the business operations at the factory it controls.

[9]      The application is accompanied by a certificate personally signed by the applicant’s lawyer in proper form.   That is, he has certified that the application complies with the rules.

[10]     Further, Ms Pearson who is the sole director of the applicant, has given a personal undertaking as to damages.

[11]     On the basis of the documents which have been filed I have reached the view that an interlocutory injunction should be granted as an interim measure to protect the applicant against further violation of the rights which it asserts.   The loss of goodwill  and  injury to  the applicant’s  client  base from  its  inability to  meet  its business obligations is unlikely to be compensable by damages.

[12]     Taking the affidavit evidence at face value it is difficult to see injury to the respondent resulting from an interlocutory injunction in the terms which I propose to make.

[13]     The form of the order which the applicant seeks is a little nebulous but it is what the applicant seeks.   Furthermore, its vagueness tends to mitigate injury or damage to the first respondent.  It goes without saying that a business should be free from unwarranted interference.

[14]     Orders are granted in the following terms:

(a)      The respondents are restrained from directly or indirectly interfering

with the business operations at 42 Riverbank Road, Otaki.

(b)The applicant must file and serve by 5:00pm on 16 September 2016 the proceeding which it has foreshadowed.

(c)       This order is effective until further order of the Court.

Karen Clark J

Solicitors:

Alan Campbell, Paremata for Applicant