Relph v Ryan

[2018] NZHC 80

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2018-485-000095 [2018] NZHC 80

UNDER

The Partnership Act 1908 and/or the

Contract and Commercial Law Act 2017

BETWEEN

CRAIG PRESTON RELPH Plaintiff

AND

MATTHEW PETER RYAN Defendant

Hearing:	(On the papers)
Judgment:	8 February 2018

INTERIM JUDGMENT/ORDERS OF VENNING J

This judgment was delivered by me on 8 February 2018 at 4.30 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Reeves Lawyers, Wellington

RELPH v RYAN [2018] NZHC 80 [8 February 2018]

[1]      Mr Relph seeks an interim injunction on a without notice basis preventing or restraining Mr Ryan from taking any steps to prevent or obstruct Mr Relph from settling a purchase in his own name or by his nominee of a property at 212 The Terrace, Wellington, including not to lodge a caveat against a title to the property.

[2]      The background to the application is contained in Mr Relph’s affidavit.  Mr Relph and Mr Ryan are property developers.  They were both bidding at an auction for the property on Friday, 1 December 2017. Rather than bid against each other they came to an agreement to buy the property in partnership, to reset the auction to where they commenced bidding against each other and for the plaintiff to bid alone and against any other interest at the auction. The intention was to hold the property jointly as an investment.  The plaintiff was ultimately the successful highest bidder at $1.72 million in accordance with their agreement. Mr Relph and Mr Ryan then both entered the contract as purchasers (also providing for a nominee).

[3]      Mr Relph later paid the deposit on behalf of both of them.

[4]      Later during December the parties had discussions about the possibility of Mr Relph buying out Mr Ryan’s interest in the contract.  They were not able to agree on the buy-out figure. Their relationship then deteriorated.

[5]      Unfortunately matters have deteriorated to the extent that the parties have exchanged intemperate emails.  One interpretation of the emails is that Mr Ryan does not intend to contribute to the settlement, but still intends to claim an interest in the property.  There is also the veiled threat by Mr Ryan that he will allow or ensure Mr Relph is placed in a position where he will be obliged to pay penalty interest to the vendor from the settlement date of 22 February 2018.

[6]      It is on that basis the injunctive order is sought.  It is sought without notice as Mr Relph is concerned that if the proceedings are served on Mr Ryan he may take steps to caveat the title in order to prevent the settlement.

[7]      On the material before the Court, I am satisfied that there was an agreement between the parties to jointly purchase the property and that arguably Mr Ryan has

breached the agreement.  The balance of convenience favours settlement proceeding on 22 February 2018 as Mr Relph intends.

[8]      However, given the background to this matter and the written contract for purchase to which both are parties I am not prepared to make all the orders sought by Mr Relph without the Court hearing from Mr Ryan.

[9]      Settlement is scheduled for 22 February 2018, some two weeks away.   Mr Relph’s immediate concern that Mr Ryan may take steps to caveat the title and thus derail the settlement on that day can be addressed by a limited order.

[10]     I make the following interim directions/orders:

(a)       The  defendant  Matthew  Peter  Ryan  is  restrained  from  lodging  or causing to be lodged a caveat against the title to the property known as

212 The Terrace, Wellington, being an estate in fee simple containing

384 square metres more or less situate in the City of Wellington being section 1 on Survey Office Plan 36321 and Lot 3 DP 12663 and being all the land in title recorder WN42C/260 until further order of the Court.

(b)      The plaintiff is to forthwith serve these proceedings on the defendant.

(c)       The  application  for  injunction  is  to  be  listed  for  call  and  further direction at 10.00 am on Monday, 12 February 2018.

[11]     Costs reserved.

Venning J