Storageone Metro Limited v Tempja (NZ) Limited

[2025] NZHC 803

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-547

[2025] NZHC 803

BETWEEN

STORAGEONE METRO LIMITED

First Plaintiff

STOREAGEONE LIMITED
Second Plaintiff

AND

TEMPJA (NZ) LIMITED

First Defendant

STORESTUFF (NZ) LIMITED
Second Defendant

PETER MICHAEL SOUTHGATE
Third Defendant

THOMAS EDWARD SOUTHGATE

Fourth Defendant

Hearing:

11 and 27 March 2025

Appearances:

C Chapman for Plaintiffs

S Bisley and D Ballinger for Defendants

Judgment:

7 April 2025

JUDGMENT OF ASSOCIATE JUDGE SKELTON

[Results]

[1]                On 18 October 2024, the defendants filed  an interlocutory application under r 8.19 of the High Court Rules 2016 (HCR) seeking particular discovery of the following documents:

(a)Records of payments by customers of the Petone storage facility relating to storage unit rent for the period beginning 26 January 2023,

STORAGEONE METRO LIMITED v TEMPJA (NZ) LIMITED [2025] NZHC 803 [7 April 2025]

including bank statements and correspondence with those customers about payments (the Payment Records); and

(b)Affidavit evidence filed with the High Court in proceeding CIV-2022- 485-149 between Storageone Kapiti (2012) Ltd and Sharja Ltd (the Storageone Kapiti evidence).

[2]                The 18 October 2024 application is opposed by the plaintiffs. The application also sought cell phone inspection and testing orders, but I understand this has largely been resolved between the parties and no orders are currently sought.

[3]                On 7 November 2024, the plaintiffs filed an interlocutory application to strike out all causes of action in the defendants’ second (now third) amended counterclaims on the basis they disclose no reasonably arguable cause of action and/or are frivolous, vexatious and an abuse of process. This application is opposed by the defendants.

[4]                At the end of the hearing on 27 March 2025, I indicated that I would endeavour to give a results judgment in this matter as soon as possible. This is because the defendants are currently preparing their evidence which is due to be served by 14 April 2025 and it is important that the parties know where they stand regarding the defendants’ counterclaim causes of action that the plaintiffs seek to strike out, and any further discovery is promptly provided by the plaintiffs.

[5]A reasons judgment will be issued in due course.

Result

[6]                The application for strike out of the defendants’ second counterclaim cause of action is resolved by consent as follows:

The defendants maintain their position that this cause of action should not be struck out. However, without prejudice to this position, the defendants will amend their current pleading to replead the second counterclaim as an affirmative defence to the plaintiffs’ second and third causes of action seeking an injunction requiring the defendants to allow Storageone Metro and/or Storageone access to remove and uplift items in the premises.

[7]                I am not satisfied the defendants’ first, third and fourth counterclaim causes of action are so untenable they cannot succeed or that they are frivolous or vexatious. The plaintiffs’ application for strike out of the defendants’ first, third and fourth counterclaim causes of action is dismissed. However, the defendants are required to amend their pleading as follows:

First counterclaim cause of action

(a)The first counterclaim cause of action is to be pleaded as a claim by Tempja against Storageone Metro.

(b)The defendants are to plead the particulars of lost revenue referred to at [236.2] of the third amended counterclaim dated 10 February 2025.

(c)The defendants’ pleading is to address the factual matters they allege justify discretionary relief under s 43 of the CCLA including the relevant matters in s 45 to which the Court must have regard.

Third and fourth counterclaim causes of action

(d)The defendants are to plead further particulars in respect of the third and fourth counterclaim causes of action as follows (possibly in the form of a schedule):

(i)identify the relevant customers and the dates and details of the relevant payments made by those customers to Storageone;

(ii)in respect of each of the relevant customers, identify whether any prepayment(s) made by a customer to Storageone was recognised by the defendants and/or whether the customer received a free period of storage, and provide details of any prepaid storage period or free storage period;

(iii)in respect of each of the relevant customers, identify whether and, if so, when the customer removed their goods from the premises;

(iv)in respect of each of the relevant customers, identify whether the customer entered into a storage contract with the defendants and/or made payments to the defendants for storage and provide details of the dates and amounts of those payments; and

(v)in respect of each of the relevant customers, identify the amount of the payment(s) made by that customer to Storageone which it is alleged was “at the expense of” the defendants.

[8]                The defendants’ application for discovery of the Payment Records is granted. Within 10 working days of the date of this judgment, the plaintiffs are to:

(a)file an affidavit of documents:

(i)listing records of payments made by customers of the Petone storage facility to Storageone between 26 January 2023 and  26 January 2024, including any bank statements and correspondence with those customers relating to the payments or refunds of the payments, and any internal documents recording oral communications with those customers relating to the payments or refunds of the payments, or which are relevant to any defence raised by the plaintiffs.

(ii)stating whether the documents are or have been in the plaintiffs’ control and, if the documents have been but are no longer in the plaintiffs’ control, the plaintiffs’ best knowledge and belief as to when the documents ceased to be in their control and who now has control of them; and

(b)serve that affidavit on the defendants; and

(c)if the documents are in the plaintiffs’ control, make those documents available to the defendants for inspection in accordance with r 8.27 of the High Court Rules.

[9]                The defendants’ application for discovery of the Storageone Kapiti evidence is dismissed.

[10]            Costs are reserved and further directions regarding costs will be given in the reasons judgment.

Timetabling directions

[11]            The defendants are to file and serve a further amended statement of defence and counterclaim within 10 working days after provision by the plaintiffs of the documents referred to in [8(a)(i)] above.

[12]              A telephone conference is to be scheduled for Friday, 11 April 2025 at 3.15pm to consider any necessary amendments to the pre-trial timetable set out in the minute of Boldt J dated 10 June 2024. The parties are to file a joint memorandum or, if necessary, separate memoranda by 4pm on Thursday 10 April 2025 seeking any appropriate amendments. The telephone conference will be vacated if amendments can be made by consent. As indicated at the hearing on 27 March 2025, there is no provision in the rules for reply briefs.1 Supplementary briefs are governed by r 9.8 of the High Court Rules.

Associate Judge Skelton

Solicitors:

Brandons, Wellington for Plaintiffs Gibson Sheat, Lower Hutt for Defendants

1      See Body Corporate 406198 v Argon Construction Ltd [2023] NZHC 1072 at [14].