Pulan Foods Limited v Bluehaven Investments Limited

[2025] NZHC 2616

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV 2025-470-114

[2025] NZHC 2616

BETWEEN

PULAN FOODS LIMITED

Applicant

AND

BLUEHAVEN INVESTMENTS LIMITED

Respondent

Hearing:	5 August 2025
Appearances:	A Kivilcim for Applicant (self-represented) J Hakaria for the Respondent
Judgment:	9 September 2025

JUDGMENT OF HARVEY J

This judgment is delivered by me on 9 September 2025 at 2.15 pm pursuant to r 11.5 of the High Court Rules

……………………………… Deputy Registrar

Solicitors:

Sharp Tudhope, Tauranga

Party:

Ali Kivilcim

PULAN FOODS LTD v BLUEHAVEN INVESTMENTS LTD [2025] NZHC 2616 [9 September 2025]

Introduction

[1]    Pulan Foods Ltd operates a Turkish restaurant called Ali Baba’s House. It operates from premises leased from Bluehaven Investments Ltd in Pāpāmoa, Tauranga and are part of “The Sands Town Centre” (The Sands). The Sands is a large shopping and housing development which is to be built in various stages over several years. The lease between the parties commenced on 5 November 2024. However, since then, Pulan Foods has not paid any rent or outgoings.

[2]    As of 1 July 2025, the arrears totalled $79,781.26. On 4 July 2025, Bluehaven served Pulan Foods with notices of its intention to cancel the Lease under ss 245 and 246 of the Property Law Act 2007 (PLA). On 9 July 2025, Pulan Foods filed these proceedings seeking relief against cancellation and an interim injunction restraining Bluehaven from cancelling the Lease until their substantive application is determined.

[3]    Pulan Foods submits Bluehaven misrepresented the timeline for completion of stages two and three of the Sands and that, accordingly, trade was significantly less than anticipated. This affected Pulan Foods’ profitability and ability to pay rent. Pulan Foods also contends that by refusing to engage in mediation or meaningfully respond to repayment proposals, Bluehaven’s attempt to cancel the lease is unjust and inequitable. For these reasons, Pulan Foods argues it is entitled to an injunction compelling Bluehaven not to cancel the lease but to instead enter mediation.

[4]    Bluehaven opposes the interlocutory application, denies misrepresentation and denies there is any obligation to enter into mediation. Bluehaven submits there is no reason to require continuation of the lease given Pulan Foods’ ongoing failure to pay rent or outgoings, nor would such an order be equitable. Bluehaven, however, agreed not to cancel the lease until the 5 August 2025 hearing and the resulting judgment.

[5]This issues to be determined in this judgment are:

(a)whether Bluehaven should be ordered to engage in mediation; and

(b)whether an interim injunction should be ordered to preserve the status quo until the substantive hearing or mediation.

Legal representation and resolution proposals

[6]    Mr Kivilcim sought permission to appear for Pulan Foods. Mr Hakaria for Bluehaven did not oppose. At the hearing I confirmed Mr Kivilcim could represent the company and this was recorded in my minute of 5 August 2025.1

[7]    The possibility of a negotiated resolution before the release of this judgment was also discussed during the hearing. The minute underscored the urgency of Pulan Foods presenting Bluehaven with their best offer to repay the arrears. However, the Court has not been informed of any such resolution. For convenience, the relevant parts of my 5 August 2025 minute are set out below:

[3]        Both in his written and oral presentation, Mr Kivilcim emphasised that he had attempted to negotiate a repayment plan with Bluehaven repeatedly but that his efforts had proved unsuccessful. This was because he claimed Bluehaven had simply not responded to his proposals. During the hearing, Mr Kivilcim told me that he would be in a position to pay $1,500 per week towards the arrears and would repay all outstanding sums in March 2026. He also confirmed that an existing commitment to repay that weekly amount to Heartland Bank would end by the end of the year. Those funds could then also be put towards repaying the debt due to Bluehaven. This would represent an amount of $12,000 per month commencing around 1 January 2026.

[4]        When I asked Mr Kivilcim what security he could offer to Bluehaven, he stated that he, his mother or both owned a property in Turkey which was in the process of being sold. Mr Kivilcim stated that part of those sale proceeds could then be used towards reducing Pulan Foods indebtedness. He also candidly confirmed that while he owned three properties in New Zealand (presumably), these all had negative equity because he had purchased them during the high point of the property cycle.

[5]        In this context, Mr Kivilcim also confirmed that Pulan Foods’ business employed three fulltime and one part-time staff member while he, his mother and wife assisted with the business on an unpaid basis. This included social media and marketing effort by Mr Kivilcim’s wife which he said were successful. He underscored how the business’ weekly turnover had increased from $8,000 to $9,000 per week to anywhere between $10,000 to $12,000 per week. While this was not a large increase in turnover in percentage terms, it was   nonetheless   not   insignificant.   More   importantly,   according   to Mr Kivilcim, it did represent a positive upward trajectory which showed that the business was on firmer footing and was improving. Mr Kivilcim argued that Pulan Foods needed more time to stabilise the business and improve its position so that it could meet its obligations to Bluehaven.

[6]        I also note that a creditor application concerning Pulan Foods is to be heard before this Court on 29 September 2025.   The short point is that if   Mr Kivilcim and Pulan Foods have any repayment proposals, then they should

1      Pulan Foods Ltd v Bluehaven Investments Ltd HC Tauranga CIV-2025-470-114, 5 August 2025.

urgently finalise those and put them before Bluehaven either directly or via Mr Hakaria. While as set out below I record Mr Hakaria’s confirmation that Bluehaven will take no steps to continue to enforce the lease until I have issued a judgment, that window of opportunity for Pulan Foods and Mr Kivilcim is not likely to be lengthy.

[7]        At the risk of belabouring the point, Mr Kivilcim and Pulan Foods should do all they can to put their best proposals forward between now and when a judgment may be issued. As I intimated at the hearing, this was because the decision might be in Pulan Foods favour or might go against the company and in either event, the unsuccessful party would have rights of appeal.

Background

Debt to Bluehaven

[8]        On 1 August 2023, Pulan Foods entered into an agreement to lease the Premises from Bluehaven. Mr Kivilcim submitted Pulan Foods entered the lease based on representations by Bluehaven and its agents regarding the imminent commencement and completion of stages two and three of The Sands: claiming that Pulan Foods was assured this would create a thriving commercial environment for its business. Bluehaven denies this allegation.

[9]        Between August 2023 and August 2024, Pulan Foods paid the $5,750 signing fee, $6,000 in advance rent and the $50,094 security deposit. The lease then commenced on 5 November 2024 and the restaurant opened on 15 November 2024. As mentioned, Pulan Foods did not pay rent and outgoings as they fell due. Bluehaven starting using the security deposit to cover this non-payment. Eventually, Bluehaven issued a notice to reinstate the deposit but Pulan Foods did not comply. Bluehaven continued to use the security deposit until it was exhausted.

[10]      By 1 July 2025, total arrears had reached $79,781.26 comprising $29,687.26 in rent and outgoings owing and $50,094 for the outstanding security deposit.   On   4 July 2025, Bluehaven issued notices under ss 245 and 246 of the PLA. The deadline for remedying the defaults was 18 July 2025. On 9 July 2025, Pulan Foods filed the current originating and interlocutory applications: it did not dispute the amount owed but nonetheless seeks urgent relief under s 243. The 18 July 2025 deadline has since passed and Pulan Foods has not yet paid the outstanding sums.

Debt to Livingstone

[11]      As a corollary matter, I note that Pulan Foods had engaged Livingstone Building Ltd to carry out fitout works to the Premises. In 2024, Livingstone issued payment claims for $446,901.59 under the Construction Contracts Act 2002, which were unpaid.2 On 14 July 2025, Livingstone sent a statutory demand to Pulan Foods for payment of the outstanding amount. Pulan Foods has not paid this either and is therefore presumed to be unable to pay its debts.3 Livingstone has applied to place Pulan Foods into liquidation which is due to be called on 29 September 2025 at the Tauranga High Court. Mr Kivilcim proposed a payment plan but Livingstone Buildings has purportedly not responded.

Attempts at resolution

[12]      As foreshadowed, Mr Kivilcim gave evidence that Pulan Foods made multiple attempts to engage in mediation with Bluehaven but that these requests received no response. Pulan Foods nevertheless made a formal proposal to remedy the arrears and reinstate the security deposit — outlining a commitment to weekly payments of $1,500 and full repayment by March 2026.  However, Bluehaven declined this proposal.   Mr Kivilcim submitted this demonstrates Bluehaven’s unwillingness to engage in a reasonable remedy and their failure to mitigate their own losses.4

Should Bluehaven be ordered to engage in mediation?

[13]      Clause 13.7 of the Lease sets out a procedure for resolving disputes. It includes both mediation and arbitration. Mr Kivilcim submitted that Bluehaven’s refusal to engage in mediation is a breach of the Lease. However, cl 13.7(e) provides that:

The procedures described in this clause shall not prevent [Bluehaven] from taking proceedings for the recovery of any Rent or other moneys payable under this Lease which remain unpaid, or from exercising the rights and remedies in the event of a default as described in this Lease.

2 See Construction Contracts Act 2002, s 23.

3 Companies Act 1993, s 287.

4 Mr Kivilcim also acknowledged the strong language he used in several emails to Bluehaven but explained that these were a raw and understandable expression of the extreme stress, frustration and desperation he was experiencing due to the financial hardship faced by his business and the looming threat of losing his livelihood.

[14]      Despite cl 13.7(e), Mr Kivilcim contended that cl 13.7 must be interpreted equitably and in context. He argued it was both inequitable and would defeat the purpose of the mediation clause for Bluehaven to be permitted to cancel the lease without first mediating the underlying dispute regarding the alleged misrepresentation.

[15]      After carefully considering the lease and the submissions of the parties, I find that cl 13.7 does not apply, given that the carve out in cl 13.7(e) in combination with cl 10.1(a) for Bluehaven to cancel the lease should Pulan Foods accumulate arrears and fail to remedy the default following a s 245 notice. Although there is an underlying dispute regarding misrepresentation, this does not permit Pulan Foods to breach its rental obligations. Furthermore, it was open to Pulan Foods to take the next step under cl 13.7(c) and proceed to arbitration. In fact, this was likely incumbent on Pulan Foods rather than simply letting the arrears accumulate. Overall, I do not consider Bluehaven has breached cl 13.7 and I decline to make the order sought.

Should an interim injunction be granted?

[16]      The principles for determining interim injunction applications are well settled and include whether there is a serious question to be tried, the balance of convenience and the overall justice of the case.5

Is there a serious question to be tried?

[17]       Pulan Foods must establish there is a serious question to be tried and that its claim is neither frivolous nor vexatious. This requires the court to consider the applicable law, facts and issues to determine whether there is a tenable combination on which the plaintiffs could succeed.6

[18]      Mr Kivilcim accepted the arrears are owing but submitted they are a consequence of the lack of the viable commercial environment promised by Bluehaven. He submitted Pulan Foods decided to enter into the lease and invested almost $1 million in the Premises based on Bluehaven’s representations regarding the

5     NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90, (2013) 13 TCLR 531 at [12].

6     Hannon v Senior Trust Capital Ltd [2023] NZHC 16, (2023) 26 PRNZ 205 at [39]; and

Eco Maintenance Ltd v Leighton Contractors Pty Ltd [2014] NZHC 2340 at [7].

imminent commencement and completion of stages two and three of The Sands. Bluehaven’s failure to deliver on the development timelines has resulted in significant financial hardship for Pulan Foods and is a breach of contract. As a result, Mr Kivilcim contended Bluehaven cannot now enforce the contract. Mr Kivilcim also argued that promissory or equitable estoppel, breach of an implied covenant, derogation from grant of lease, constructive eviction or unconscionable bargain might apply.

[19]      In contrast, Mr Hakaria submitted that Pulan Foods has not provided details about the alleged misrepresentation regarding the development of stages two and three of The Sands. No dates or times are mentioned and it is unclear whether the alleged misrepresentations were made orally, in writing or both. It is not clear who at Bluehaven made the alleged misrepresentations nor what was specifically represented. Regardless, Bluehaven denies the allegations. Hakaria contended Bluehaven would not have made such representations as stages two and three are part of a massive development that will take time to develop. Bluehaven could not have made any representations about the commencement date, development speed or when there would an increase in foot traffic. Mr Hakaria also noted there is an entire agreement clause within the lease to which the parties had willingly agreed.

[20]      In summary, I agree with Mr Hakaria. The material filed does not reveal any evidence nor particulars to support the alleged misrepresentations. This central pillar of Mr Kivilcim’s argument is unsupported and, consequently, untenable.

[21]      Mr Kivilcim also noted the agreement to lease provides for Bluehaven to take ownership of the Premises and the fitout without compensation. He submitted this amounts to unjust enrichment as the cancellation stems from Bluehaven’s own misrepresentations. The allegation of unjust enrichment is not seriously arguable because, as above, Mr Kivilcim has not provided any evidence or particulars of the alleged misrepresentations. The associated claim of unjust enrichment has therefore not be sufficiently substantiated.

[22]      Mr Kivilcim argued that Bluehaven is coordinating with Livingstone to remove Pulan Foods from the premises, noting the timing between Bluehaven’s ss 245 and 246 notices (4 July 2025) and Livingstone’s statutory demand (14 July 2025).

Moreover, the founder of Livingstone, Mike Stevenson, is on the board of Bluehaven and Bluehaven’s “Lessor Project Contact List” identifies Livingstone as their “Base Building Contractor”. Mr Kivilcim submitted this demonstrates an orchestrated attempt by Bluehaven and Livingstone to remove Pulan Foods from the Premises. He argued this combined pressure may amount to economic duress — more so when Pulan Foods is the only tenant being singled out in this manner.7

[23]      Mr Kivilcim also contended that Pulan Foods is being treated differently to other struggling businesses in The Sands. He gave evidence that other businesses are reportedly only paying half rent or have reduced trading hours. He argued that Bluehaven's failure to engage in mediation or respond to remedial offers, while others are allegedly given concessions, amounts to a breach of the duty of good faith and fair dealing implied in commercial contracts.8

[24]      I do not consider these claims to be seriously arguable. Not only is there little evidence of anything improper on the part of Bluehaven and Livingstone, but the doctrine of economic duress would only have relevance to Pulan Foods’ decision to enter into the lease, not to Bluehaven’s decision to cancel it following breaches. Tellingly, the relevant actions of Bluehaven and Livingstone all took place after the formation and entry into the lease.

[25]      Mr Kivilcim submitted that some of the specific charges imposed by Bluehaven amounted to unenforceable penalty clauses rather than genuine pre-estimates of loss.9 Again, it is unclear what charges Mr Kivilcim is referring to and he has not provided sufficient evidence or particulars for this claim to be seriously arguable. Even if those specific charges are unenforceable, this would likely be insufficient to warrant granting the interim injunction.

7     Citing Contractors Bonding Ltd v Snee [1992] 2 NZLR 157 (CA).

8     Citing Mobil Oil NZ Ltd v Development Auckland Ltd [2016] NZSC 89, [2017] 1 NZLR 48.

9     Citing 127 Hobson Street Ltd v Honey Bees Preschool Ltd [2020] NZSC 53.

Does the balance of convenience favour granting the interim injunction?

[26]Relevant considerations regarding the balance of convenience include:10

(a)the adequacy of damages;

(b)the status quo;

(c)the uncompensatable disadvantages to each party; and

(d)the relative strength of each party’s case as revealed by the affidavit evidence.

[27]      Mr Kivilcim submitted that if the interim injunction is not granted, the Lease will be cancelled and Pulan Foods will immediately collapse and lose its almost

$1 million investment in the Premises. Moreover, the reputation and goodwill of the Ali Baba’s House will be destroyed. This will have significant impacts on its employees and their families. In which case, Mr Kivilcim contended that damages would not be able to compensate for the cancellation of the lease and the consequent failure of the business.

[28]      In addition, Mr Kivilcim argued that the balance of convenience lies in protecting the status quo and granting the injunction. This upholds the principle of security of tenure and Pulan Foods’ legitimate expectation to operate, preventing disproportionate harm while the  substantive  issues  are  addressed.  Furthermore, Mr Kivilcim submitted the Court may grant relief against forfeiture if the tenant can remedy the breach and has acted in good faith. Pulan Foods has proposed a repayment plan and therefore Mr Kivilcim contended that cancellation is disproportionate. It would cause irreparable harm to Pulan Foods while Bluehaven’s losses are quantifiable and recoverable.

[29]      On the other hand, Mr Hakaria argued that damages would not be an adequate remedy for Bluehaven as it would likely be impossible to recover damages from Pulan Foods given the latter’s financial difficulties. If the matter is not heard until February

10  See  Wellington   International   Airport   Ltd   v   Air   New   Zealand   Ltd   HC   Wellington   CIV- 2007-485-1476, 30 July 2008 at [5]–[14], citing American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL).

2026 (with judgment in May 2026) the arrears would reach approximately $92,000. It is unlikely that, even if successful, Bluehaven would be able to recover this amount from Pulan Foods. Counsel also noted that Pulan Foods owes Livingstone

$446,901.59 and is subject to liquidation proceedings in respect of this debt. In these circumstances, Mr Hakaria submitted that Pulan Foods’ undertaking as to damages is effectively worthless and provides no meaningful protection or compensation.

[30]      Mr Hakaria submitted that granting the interim injunction would unfairly shift the commercial risk onto Bluehaven: Pulan Foods would be unlikely to pay rent and outgoings during this period and Bluehaven would be prevented from securing a new tenant who could. Bluehaven would also still need to pay GST on the invoices issued to Pulan Foods despite not receiving rent and outgoings. Further, if Livingstone places Pulan Foods into liquidation, Bluehaven would be an unsecured creditor unable to recover any arrears regardless of Pulan Foods’ good intentions.

[31]      Mr Hakaria noted Bluehaven’s sympathy for Pulan Foods and Mr Kivilcim but submitted that closure is the stark reality for any business and operator that cannot pay its debts. It is not unique to Pulan Foods or Mr Kivilcim. Allowing an insolvent company to trade just so a business does not close and livelihoods are not lost is contrary to the policy of insolvency law

[32]      I consider that the balance of convenience favours declining the interim injunction. Bluehaven would be unlikely to obtain any damages if successful in future. Pulan Foods has not provided any evidence to show it will be able to repay the arrears or pay damages. Likewise, enforcing the status quo will cause notable prejudice to Bluehaven by preventing them from mitigating their losses and obtaining a replacement tenant. These disadvantages likely cannot be compensated for an award of damages against Pulan Foods given its impecuniosity.

[33]      On the other hand, I acknowledge that declining the present application will likely facilitate the collapse of Pulan Foods, the loss of three full-time and one part-time position and the end of Mr Kivilcim’s livelihood from this business — this has serious financial consequences for the individuals concerned and their families. The extent to which these losses can be compensated for by damages should the

cancellation eventually be proved unlawful is uncertain. However, Bluehaven would seemingly be able to pay a damages award.

[34]      Nonetheless, considering the relative merits of each party’s case, I consider that, on the evidence before me, Pulan Foods claims are not strong. As above, I do not consider there to be a serious question to be tried. Granting the injunction would therefore significantly prejudice Bluehaven despite the lack of any serious case against them or any evidence of wrongdoing on their part.

Does the overall justice of the case require granting the interim injunction?

[35]      As foreshadowed, Pulan Foods has not paid rent and outgoings for approximately 10 months (without part payment) and now seeks urgent relief from the Court to prevent Bluehaven from exercising its contractual and statutory right to cancel the lease. In contrast, there is no evidence or particulars to support the allegation that Bluehaven made misrepresentations or has acted improperly. Bluehaven has instead provided Pulan Foods with considerable time to remedy the defaults, despite Bluehaven not being obliged to provide this time under the lease.

[36]      I accept Mr Hakaria’s submission that, in the absence of evidence to the contrary, Pulan Foods appears insolvent, owing Bluehaven almost $80,000 as of 1 July 2025 and Livingstone $446,901.59. Pulan Foods does not dispute these figures and has not provided evidence of solvency or an ability to pay. Pulan Foods failure to comply with Livingstone’s 14 July 2025 statutory demand has resulted in the latter’s liquidation application. In short, I do not consider that the overall interests of justice require Bluehaven to effectively continue to support a struggling business where its prospects of trading out of its difficulties appear remote. It is unclear what benefit this would obtain Pulan Foods given the likelihood their substantive application will be unsuccessful or the possibility they will be placed into liquidation in September 2025. It will also cause significant prejudice to Bluehaven.

[37]      While I acknowledge the difficult position Mr Kivilcim has found himself in, and the distress this has caused him, his family and the staff of Ali Baba’s House, without a realistic repayment plan acceptable to Bluehaven, the available evidence does not justify the granting of an injunction.

Decision

[38]The interlocutory application for an interim injunction is declined.

[39]If the parties cannot agree upon costs:

(a)Bluehaven Investments will have 15 working days from today to file costs submissions.

(b)Pulan Foods will then have another 10 working days to file reply submissions.

(c)All submissions are to be limited to three pages (excluding any attachments).

(d)I expect any dispute about costs can be settled on the papers, however counsel may address this in their submissions if they wish.

Harvey J