Pindur v Koffeman

[2025] NZHC 3459

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-1936

[2025] NZHC 3459

BETWEEN

MICHAEL JOHN PINDUR and RICHARD JOHN GALBRAITH
Plaintiffs

AND

DIRK KOFFEMAN and HOTSKE KOFFEMAN

Defendants

Hearing:	12 November 2025
Appearances:	S McAnally for Plaintiffs D J Rooke for Defendants
Judgment:	13 November 2025

JUDGMENT OF LANG J

[on applications for stay of proceeding and interim injunction]

This judgment was delivered by Justice Lang On 13 November at 2.00 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

Fencible Law/S McAnally, Barrister, Auckland GML Law, Auckland

PINDUR v KOFFEMAN [2025] NZHC 3459 [13 November 2025]

[1]        The parties to this proceeding are the owners of a parcel of land situated in Bucklands Beach. Each owns an undivided one-half share in the fee simple estate.

[2]        The land is subject to a cross-lease arrangement under which the plaintiffs and defendants each enjoy the benefit of a registered lease under which they have an exclusive right to occupy a building and a defined area of the land. The plaintiffs have the right to occupy Flat 2 and an area situated at the rear of the property. The defendants have the right to occupy Flat 1 and an area situated at the front of the property.

[3]        A dispute has arisen because Mr and Mrs Koffeman are now well on the way to constructing a new dwelling on the land adjacent to their existing dwelling. Their lease prohibits them from making any structural alterations or additions to their dwelling without the prior written consent of the plaintiffs as lessors under the lease. The plaintiffs contend that the Koffemans have never obtained their consent to the building work that they have undertaken. They therefore seek an interim injunction preventing the Koffemans from undertaking any further building work on the new dwelling.

[4]        Mr and Mrs Koffeman argue that the first-named plaintiff, Mr Pindur, agreed to the building work being undertaken when he attended a meeting with Mr Koffeman and subsequently initialled the plans for the proposed new dwelling in 2020. They also rely on the fact that the lease contains a provision requiring the parties to have any dispute relating to the lease determined by arbitration. The Koffemans therefore seek an order staying the present proceeding so that the parties can have the dispute determined by an arbitrator.

The application for stay

[5]        The lease under which the defendants occupy the front section of the property contains the following clause:

26       ARBITRATION

If any dispute or question or differences arises between:

(a)The parties to this lease; or

(b)Their respective representatives or assigns; or

(c)One of the parties and the representatives of any other; and the dispute relates to:

(i)This lease; or

(ii)Any clause or thing contained or implied in it; or

(iii)The construction of this lease; or

(iv)The duties or liabilities of any party in connection with the land; or

(v)The use or occupation of the land, or the flat or any other buildings on the land.

Then and in every such case the matter in difference shall be referred to the arbitration of two or more arbitrators and their umpire (one arbitrator to be appointed by each party to the dispute) in accordance with the Arbitration Act 1908, its amendments and any Act in substitution for it.

[6]        Schedule 1 to the Arbitration Act 1996 (the Act) contains the following provision:

8        Arbitration agreement and substantive claim before court

(1)A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting that party’s first statement on the substance of the dispute, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative, or incapable of being performed, or that there is not in fact any dispute between the parties with regard to the matters agreed to be referred.

(2)Where proceedings referred to in paragraph (1) have been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.

[7]        The plaintiffs resist the application for stay on the basis that there is no live dispute that engages the arbitration provision in the lease. However, this argument ignores the fact that Mr and Mrs Koffeman contend that the plaintiffs consented to the building work being carried out when Mr Pindur endorsed his signature on the plans.

Mr Pindur denies that he gave his consent to the project. This confirms there is a live factual dispute between the parties in relation to the clause of the lease that prohibits the Koffemans from undertaking any additions or alterations to their dwelling without the plaintiffs’ consent.

[8]        I consider this dispute squarely engages cl 26 of the lease. I am therefore satisfied the dispute should be referred to arbitration for determination. It follows that the present proceeding should be stayed for that purpose.

The application for an interim injunction

[9]        The fact that a proceeding is to be stayed to allow the parties to have a dispute determined by arbitration does not prevent the Court from making interim orders designed to preserve the status quo. Article 9 of Schedule 1 to the Act provides as follows:

9        Arbitration agreement and interim measures by court

(1)It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure and for a court to grant such measure.

(2)For the purposes of paragraph (1), the High Court or the District Court has the same powers as an arbitral tribunal to grant an interim measure under article 17A for the purposes of proceedings before that court, and that article and article 17B apply accordingly subject to all necessary modifications.

(3)Where a party applies to a court for an interim injunction or other interim order and an arbitral tribunal has already ruled on any matter relevant to the application, the court shall treat the ruling or any finding of fact made in the course of the ruling as conclusive for the purposes of the application.

[10]Article 17 of Schedule 1 defines “interim measure” as follows:

interim measure means a temporary measure (whether or not in the form of an award) by which a party is required, at any time before an award is made in relation to a dispute, to do all or any of the following:

(a)maintain or restore the status quo pending the determination of the dispute:

(b)take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral proceedings:

(c)provide a means of preserving assets out of which a subsequent award may be satisfied:

(d)preserve evidence that may be relevant and material to the resolution of the dispute:

(e)give security for costs.

[11]      Both counsel proceeded on the basis that the test for an interim measure in the present context is the same as, or similar to, that for an interim injunction. This requires the applicant to establish that the interests of justice favour the granting of an injunction. In considering where the interests of justice lie, the Court must first determine whether there is a serious question to be tried. If there is, the Court must consider whether the balance of convenience favours the granting of interim relief.1

Is there a serious question to be tried?

[12]      There can be little argument that this aspect of the test is satisfied. The plaintiffs have made it clear since 2020 in written communications both by them and their solicitors that they did not consent to the proposed alterations. Various attempts to resolve the issue by agreement have failed.

[13]      Mr Pindur disputes Mr Koffeman’s affidavit evidence that he endorsed his consent on the plans. Mr Koffeman’s evidence on this is as follows:

12.In 2020 my wife and I visited Mr Pindur at his Flat 2 and at the dining table we explained our proposed development. His partner was not an owner and was not present. We left the plans with him and said that if he agreed he should sign the front page and bring the plans back to us. About 2 days later which I diaried as 8 July 2020 the plans were returned signed by Mr Pindur.

13.This was then e mailed to Council and a resource consent issued on 20 July 2020…

[14]Mr Pindur responds as follows:

1      Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (HC) at 142.

3.Mr Koffeman’s paragraph 12 is false. If he is implying the initials on the resource consent documents he has annexed to his affidavit, as “DK1”, are mine, they are not. I would not have signed any plans or consents without first consulting my co-trustee and  solicitor, Richard Galbraith, and did not.

4.In fact, there was no meeting with he and his wife on 8 July 2020. They did meet with me and my wife, Estelle, about a year earlier – in March of 2019 – to ask about consent to some plans for development of their property. We said no and confirmed that in a follow up email sent to the Koffemans on 3 March 2019. A true copy of that email is annexed and marked “A”.

[15]      It is obviously neither possible nor appropriate to attempt to resolve this dispute in the present context. It will be one of the key issues at the forthcoming arbitration. However, I have no hesitation in concluding that there is a serious issue to be tried.

Does the balance of convenience favour the granting of relief?

The merits of the plaintiffs’ claim

[16]      In assessing where the interests of justice lie, the strengths and weaknesses of the plaintiffs’ claim may be a relevant factor.

[17]      As I have already noted, the lease required the Koffemans to obtain the plaintiffs’ prior written consent if they wished to undertake any additions or alterations to their dwelling. The plaintiffs have been consistent since 2020 in stating that they have not consented to the works that the Koffemans proposed to carry out on their area of the land. By contrast, I consider the Koffemans’ argument that Mr Pindur consented to the proposed works in 2020 is arguably weakened by several factors. First, they face the issue that the second-named plaintiff, Mr Galbraith, never gave his written consent to the proposal. The plaintiffs own the land in their capacity as the trustees of a family trust. Trustees must act unanimously. Even if Mr Pindur had endorsed his consent, the proposal would  also  have  required  the  consent  of  his  co-trustee,  Mr Galbraith. There is no evidence that Mr Galbraith consented to the proposal.

[18]      Secondly, the Koffemans have not produced the plans that they say Mr Pindur endorsed with his signature. This is a matter of some significance given the importance of those documents to the Koffemans’ argument.

[19]      Thirdly, the Koffemans and their solicitors have never previously suggested that Mr Pindur consented to the plans in 2020. This argument was raised for the first time when Mr Koffeman filed his initial affidavit in the present proceeding.

[20]      Fourthly, the solicitors acting for the Koffemans in relation to the present proceeding wrote to the plaintiffs’ solicitors on 25 September 2025 formally seeking consent to the works. By that stage the construction of the new dwelling was already well advanced. This proceeding had also been listed for first call two weeks earlier. It is difficult to see why the Koffemans would have instructed their solicitors to seek the plaintiffs’ formal consent to the works in September 2025 if they were confident that Mr Pindur had already provided consent on behalf of the trustees in 2020.

[21]      These factors mean that, on the material presently available, I regard the plaintiffs’ claim to be relatively strong. Conversely, the Koffemans’ argument that the plaintiffs had consented to the proposal must be regarded as relatively weak. Their alternative claim, namely that the plaintiffs have unreasonably withheld their consent, must also be regarded as weak given that they never formally sought the plaintiffs’ consent until after the present proceeding was issued.

[22]      It is true that the plaintiffs advised the Koffemans in 2019 that they did not wish to hinder their project. However, they made this statement during negotiations relating to a possible subdivision of the land. This would have enabled each party to become the sole owner of the land they currently occupy. Those negotiations eventually came to nothing because the parties were unable to reach agreement regarding the terms on which the subdivision could take place.

The conduct of the parties

[23]      There is nothing in the conduct of the plaintiffs that would militate against the granting of interim relief. By contrast, the defendants have known from the outset that they required the prior written consent of the plaintiffs to carry out any alterations or additions to their existing dwelling. Notwithstanding this fact, they were prepared to commence work on the project in circumstances where they arguably knew they did not have the plaintiffs’ consent. Further, they were forwarded a copy of the present proceeding by email on 1 August 2025. Thereafter they permitted work on the project

to continue notwithstanding the obvious risk this entailed. The plaintiffs have therefore taken the risk from the outset that they may be called to account for their actions.

Delay

[24]      Any significant delay by an applicant for interim relief may count against relief being granted. In some cases, the delay may be determinative. Mr Rooke submits on the Koffemans’ behalf that the plaintiffs have known since at least 2019 that the Koffemans proposed to undertake the development of their property. Notwithstanding this fact, they took no steps to file the present proceeding until 1 July 2025. By that stage, the construction of the new dwelling was nearly complete. Mr Rooke contends that the delay in applying for interim relief, and the costs the Koffemans have now incurred in building the new dwelling, mean that interim relief should be denied.

[25]      It is true that plaintiffs knew of the Koffemans plan to develop their property in 2019. They also became aware in 2020 that the Koffemans had applied for a resource consent to enable the new dwelling to be constructed. At that stage Mr Pindur wrote to Auckland Council advising that the plaintiffs did not consent to the proposed development in their capacity as lessors of the property. The Council responded by saying that this was a separate issue to those the Council was required to consider in determining the application for resource consent.

[26]      As matters transpired, the Koffemans did not give effect to the restrictive covenant immediately. They waited instead for approximately five years before commencing construction of the new dwelling on or about 27 May 2025. It is therefore understandable that the plaintiffs did not take steps to obtain interim relief until that point. Further, there is nothing in the evidence to suggest that the Koffemans alerted the plaintiffs to the fact that construction was about to commence in May 2025.

[27]      Approximately one week later, on 4 June 2025, Mr Galbraith sent a letter to the solicitors whom he believed were acting for the Koffemans. This pointed out that the plaintiffs were aware that work had commenced and reiterated that consent to the proposed work had not been requested. The letter also pointed out that the plaintiffs had grounds upon which to withhold their consent to the proposed development.

[28]      By 18 June 2025 Mr Galbraith had not received a response to his letter. At that point he contacted the solicitors to whom he had written. The solicitors advised that they did not hold instructions from the Koffemans on the issues that Mr Galbraith’s letter raised. Two weeks later, on 1 July 2025, the plaintiffs issued the present proceeding. Photographs taken at that point show that construction of the new dwelling had only just started. Only the foundations had been laid at that stage.

[29]      Issues then arose with service because the Koffemans were at that stage residing in the Netherlands. As already noted, the plaintiffs sent a copy of the proceeding to them by email on 1 August 2025. They then obtained a formal order for substituted service on 2 September 2025. This authorised the plaintiffs to serve the proceeding on the Koffemans at their email address. The delay in obtaining the order was caused by the Registry not passing the application for substituted service on to a Judge. By the time the proceeding was first called on 10 September 2025, the Koffemans had instructed counsel.  By the time Mr Pindur filed his  final affidavit  on 31 October 2025 construction of the new dwelling was virtually complete.

[30]      Taking this chronology of events into account, I am satisfied the plaintiffs acted expeditiously once they became aware that construction of the new dwelling had commenced. They have not been guilty of delay that would disentitle them to interim relief.

Prejudice to the parties

[31]      The new dwelling has now been fully closed in and appears to be in the final stages of construction. The Koffemans wish to live in it and rent their existing dwelling out. However, even if the new dwelling is completed within the next month, the Koffemans will not be able to reside in it until they return to New Zealand in January 2026. I consider this provides the parties with sufficient time for the dispute to proceed to arbitration, even if the Koffemans are required to attend by remote means.

[32]      There can be no suggestion that the Koffemans will suffer irreparable harm if interim relief is granted. Any delay in completing the new dwelling will, at the most, result in them incurring holding costs together with loss of rental. The plaintiffs have

provided an undertaking as to damages. Any losses the Koffemans may suffer if they ultimately succeed at arbitration should be readily ascertainable. They should also be relatively modest.

[33]      On the other hand, if interim relief is not granted it seems inevitable that the Koffemans will complete construction of the dwelling so that it is ready for them to occupy when they return to New Zealand. Should that occur, the arbitrators are likely to have little option but to award the plaintiffs monetary compensation rather than make an order that the new dwelling be demolished. Even now, it may be too late for the arbitrators to consider the latter option. However, I consider it would be wrong in principle to decline interim relief so that this option is effectively removed. That is particularly so because, on one view, it would provide the Koffemans with the outcome they have been seeking from the outset.

[34]      In one sense the granting of interim relief will also be advantageous to the Koffemans. If the arbitrators order the new dwelling to be demolished, any further building costs that they incur from this point will obviously be wasted.

[35]      Taking these factors into account, I am satisfied that the balance of convenience, and the interests of justice, require interim relief to be granted.

Orders

[36]      I make orders staying the present proceeding and referring the dispute between the parties to arbitration.

[37]      I make an interim order prohibiting the Koffemans from taking any further steps to complete the construction of the new dwelling other than those that may be necessary to ensure it is weathertight and secure. The interim order is to remain in place until such time as the arbitrators release their decision.

Costs

[38]      Both parties have succeeded on their respective applications. I therefore direct that costs lie where they fall.

Postscript

[39]      As I advised counsel during the hearing, the dispute between the parties should be capable of resolution through further discussion, mediation or some other alternative dispute resolution procedure short of formal arbitration. Should they be required to resort to arbitration, they will inevitably face significant further legal costs as well as the worry and anxiety that contested litigation of this type produces.

Lang J