Red Stag Metal Fabrication Limited v Harraway

[2025] NZHC 1

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-3287

[2025] NZHC 1

BETWEEN

RED STAG METAL FABRICATION LIMITED
Applicant

AND

SARAH HARRAWAY and ISAAC HARRAWAY

Respondents

Hearing:	On the papers
Parties:	N Watkins, Director for Applicant
Date of judgment:	7 January 2025

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 8 January 2025 at 2.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Copy to:

Applicant

Respondents

[1]    As duty judge during the Court’s long vacation, I have today been provided with Red Stag’s 23 December 2024 “urgent injunction interlocutory application to cancel a warrant to seize company property”, supported by its director’s affidavit sworn the same day.

[2]    The application, naming the Harraways as respondents, was made before commencement of any substantive proceeding against them (although the registry has treated the application as brought in associated proceedings brought by Red Stag to set aside a 10 December 2024 statutory demand made by the Harraways).1

[3]    A statutory demand is a demand by a creditor in respect of  a debt owing by  a company.2 The company has a standalone right to apply to set aside the demand.3

[4]    So far as I can tell from the documents filed, the Disputes Tribunal ordered Red Stag pay the Harraways $3,906.20 by 18 December 2023.4 Red Stag appears not to have filed a notice of appeal against the order within time and was refused leave to appeal the order out of time.5

[5]    Section 133 of the District Courts Act 2016 enables enforcement of such an order by  execution against the goods and  chattels of the judgment debtor under      a warrant to seize property. Rules 19.47–19.60 of the District Court Rules 2014 outline the subsequent process, which includes provision to the enforcement debtor of advance notice of sale of any seized goods.6

[6]    Red   Stag   says   such   a   warrant   issued   on   9   December   2024,   on    a 4 December 2024 application. I infer such application was made by the Harraways. Red Stag says it only became aware of the warrant’s issue on 18 December 2024 by reference to it in a Judge’s minute dated 17 November 2024. Neither application and/or warrant nor minute are before me.

1      Red Stag Metal Fabrication Ltd v Harraway HC Auckland CIV-2024-404-3287, 19 December 2024 (Minute of Sussock AJ).

2      Companies Act 1993, s 289.

3      Section 290.

4      Harraway v Red Stag Metal Fabrication Ltd DC Manukau CIV-2023-092-00910, 1 December 2023.

5      Harraway v Red Stag Metal Fabrication Ltd DC Manukau CIV-2023-092-00910, 25 March 2024.

6      District Court Rules 2016, r 19.56(1)(b) and (4).

[7]    While some leeway may be afforded Red Stag as unrepresented and during the Court’s long vacation, the documents filed nonetheless identify no basis for my sought interference with the District Court’s enforcement process:

(a)there is an extant order for payment of an amount of money, and court orders are to be given effect.7 I cannot identify any serious question for trial—one not vexatious or frivolous, on which the plaintiff has at least “a tenable basis upon which it might be able to succeed at trial”—as the necessary threshold for any interlocutory injunction;8 and

(b)neither, particularly given the advance notice of sale, is there any indication of present substantial prejudice to Red Stag. Indeed, at the time of Red Stag’s application, it knew bailiffs would not resume enforcement action until 6 January 2025. Thus there also is no necessary urgency for Red Stag’s application for an interlocutory injunction before the commencement of a proceeding.9

[8]    The mere fact of Red Stag’s application to set aside a statutory demand does not afford it a tenable cause of action against the Harraways. Rather, the application’s success depends on exogenous factors.10Absent any tenable cause of action against the Harraways, no interim injunction is available.11

[9]    I therefore dismiss Red Stag’s application. Given the special circumstances I have identified at [7] above, Red Stag nonetheless has leave to apply again for the same or a similar order if it can substantiate both any contended serious question for trial and the requisite urgency.12 Otherwise Red Stag should seek advice of counsel.

—Jagose J

7      Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [28].

8      Intellihub Ltd v Genesis Energy Ltd [2020] NZCA 344, [2020] NZCCLR 29 at [23], citing Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA) at 142, and [24] and [27]; Commerce Commission v Viagogo AG [2019] NZCA 472, [2019] 3 NZLR 559 at [30]–[31], citing American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL). See also NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90, (2013) 13 TCLR 531 at [12], referring to Roseneath Holdings Ltd v Grieve [2004] 2 NZLR 168 (CA) at [35]–[37].

9      High Court Rules 2016, r 7.53(2).

10     Companies Act, s 290(4).

11     Bank of New Zealand v Christian Church Community Trust [2024] NZCA 246 at [10].

12     High Court Rules, r 7.52.