Strand v Bays Music Centre Incorporated

[2012] NZHC 2813

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-5826 [2012] NZHC 2813

BETWEEN  LEANNE DEBORAH STRAND Plaintiff

ANDBAYS MUSIC CENTRE INCORPORATED Defendant

ANDTHE BOARD OF TRUSTEES OF MURRAYS BAY INTERMEDIATE SCHOOL

Third Party

Hearing:         25 October 2012

Counsel:         R Harrison for the Plaintiff and Third Party

G Kohler for the Defendant

Judgment:      25 October 2012

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors / Counsel:

Mr R Harrison, Harrison Stone, Solicitors, Auckland

Mr G Kohler, Barrister, Auckland

Mr K Ogles (instructing solicitor for the defendant), Ogles Podwin & Associates, Solicitors, Auckland

STRAND V BAYS MUSIC CENTRE INCORPORATED HC AK CIV-2012-404-5826 [25 October 2012]

[1]      The plaintiff had applied for an interim injunction.  That is no longer pursued, as confirmed by Mr Harrison this morning.

[2]      The defendant  seeks  an  interim  injunction.   The injunction  is sought,  in essence, pursuant to the defendant Society’s contractual arrangements with people who hire musical instruments from the Society.  The hire agreement is annexure “F” to the affidavit of Terry Diane Allen.

[3]      For some years there has been an end of year concert at Murrays Bay Intermediate School where the young people who have hired the instruments (with the hire agreement being between the Society and the parents) participating with the instruments in the concert or individual performances.  The general arrangement has been that following the concert designated members of the Society (and I apprehend often members of the committee) have collected instruments from the individual hirers or made arrangements for individual hirers to retain the instruments for the following year.  All of this is done pursuant to the contractual arrangements binding upon the parties to the hire agreement.

[4]      The Society has applied for the injunction, the terms of which I will come to in a moment, because of difficulties that have arisen between the plaintiff, as a member of the Society, and representatives of Murrays Bay Intermediate School. There was concern that the Society would not be able to collect the instruments in the way that this has occurred in the past.

[5]      Mr Harrison, for the plaintiff and for the third party (the Board of Trustees of the school) has advised that the principal of the school has no objection to members of the Society’s committee attending the end of year concert and taking possession of the instruments in accordance with the arrangements, save that this would have to be done under the supervision of an agreed third person.

[6]      Having discussed the issues at reasonable length with counsel, and having regard to the submissions that have been made, I am satisfied that the Society is entitled to the interim orders as set out in the application.  Because of considerable

time constraints that have now arisen in the course of this Duty Judge list it is not possible to set out any detailed reasons.  I believe it is sufficient to record that the responsible acknowledgements from Mr Harrison in large measure provide justification for the making of the orders, save that the making of the orders in the form sought does not include the provision for a third party to, in some way, act as a facilitator.

[7]      I am not persuaded that there is need for a facilitator.  I am persuaded that the orders should be made because there are a substantial number of third parties who would be affected by any variation of the contractual obligations.  These third parties are the parents who have signed the hire agreement.  In addition, without wanting to indicate any pre-judgment in respect of the issues between the parties, it is plainly encumbent on the present members of the committee of the Society to collect the instruments at the end of the concert without causing any form of disruption or other difficulties.  In saying that I am not in any way suggesting that I believe that that is likely to happen.

[8]      Accordingly, there are orders in terms of the application in paragraph 1.

[9]      This order is made on the basis of the defendant Society’s undertaking as to

damages.

[10]     Costs are reserved.  I am not making any order at this stage because of the time constraints.

Future steps

[11]   I direct that this proceeding now be referred for a comprehensive case management conference before an Associate Judge on the first available date. Amongst other things, the Judge will need to consider the appropriate form of the proceeding.  It was commenced with a standard notice of proceeding and statement of claim.   However, the plaintiff has applied for leave now to proceed by way of originating application.  Initially I was of the view that, pragmatically, it would be appropriate simply to proceed in the same form that the matter started.   However,

because a central issue concerns the affairs of an incorporated society and arguments about rule changes it may in fact be preferable that the proceeding be converted to one by way of originating application.  Amongst other things, there may be need to

give notice to Society members.

Woodhouse J