The Fiji Shop Limited v Ho HC Auckland CIV-2010-404-7660

[2011] NZHC 391

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-7660

BETWEEN  THE FIJI SHOP LIMITED Appellant

ANDTANG PHET HO First Respondent

ANDSOPHAL SAM Second Respondent

ANDKHYBER PASS TRUSTEE COMPANY LIMITED

Third Respondent

Hearing:         31 March 2011

Counsel:         R O Parmenter for Appellant

B Rooney for the Respondents

Judgment:      31 March 2011

ORAL JUDGMENT OF PRIESTLEY J

Solicitors:      Khan & Associates, PO Box 23-492, Auckland 2155

James Keat, PO Box 99-680, Auckland 1149

Counsel:       R O Parmenter, PO Box 1052, Auckland 1140

B  P Rooney, PO Box 3320, Auckland 1140

THE FIJI SHOP LTD V HO HC AK CIV-2010-404-7660 31 March 2011

[1]      This appeal is, with respect, misconceived although I can understand some of the dynamics which led to it being brought.

[2]      The appellant operates a mini supermarket in South Auckland.   All three respondents are the lessors of the lease relating to the supermarket.

[3]      Without  going  into  detail,  the  essence  of  the  appellant’s  claim  in  the Manukau District Court is that the lessors have leased an adjoining shop in the same block to a butchery business called ‘Pacific 2010 Limited’.   It is the appellant’s contention that, by leasing to a butchery which, inter alia, sells frozen meat, the butchery business is competing with the appellant’s business and that this situation is specifically contemplated in, and prohibited by, a term of the lease.

[4]      In due course the appellant filed a notice of claim in the Manukau District Court.    That  was  accompanied  by  an  interlocutory  ‘without  notice’ application seeking both substituted service and an interim injunction.

[5]      The ‘without notice’ application for an injunction read:

Granting an injunction prohibiting the respondent from operating a butchery that sells frozen meat or otherwise operates in violation of the lease.

[6]      The ‘without notice’ application was duly referred to Judge Andree-Wiltens. The Judge noted the application as follows:

Application for injunction declined.  The alleged wrong, if established, can easily be met by way of an order as to damages.

[7]      That notation, which is what one might expect a busy Duty Judge to write on any urgent without notice application, has essentially formed the basis of this appeal.

[8]      Whether or not in the context of the parties’ dispute, injunctive relief or damages would be the ultimate remedy available is, at this stage, unknown and problematic.   Certainly it is unusual for reasons, which relate to the substantive dispute, to be expressed in a simple threshold decision of whether or not an application should proceed on notice or without notice.

[9]      Mr Rooney observes that, when the proceedings were filed in the Manukau Court, the applicant’s solicitors were aware of the identity of solicitors acting for the respondent landlords.  Normally in that situation one might have expected courtesy copies of the initiating documents to be sent to the respondents’ solicitors with advice to the Court that, if appropriate, the matter could be heard on a Pickwick basis.

[10]     I say no more on that topic since I have not invited submissions on it.

[11]    Since the Judge’s decision, which was made on 4 November 2010, the respondents have filed notices of opposition in the Manukau District Court and I assume the proceeding is progressing in the normal way.  Counsel inform me that as soon as the appellant seeks to have a fixture allocated in the Manukau Court the proceeding is in all respects ready to go ahead.

[12]     With respect to the Judge, at the stage the file came to him on 4 November all he really needed to do was to decline the ‘without notice’ application and direct that both  the  interlocutory  application  and  the  substantive  proceeding  should  be  on notice.

[13]     In short, the Judge’s deployment of one of the many factors relevant  to

whether an injunction should be granted has provoked, to some extent, this appeal.

[14]     It would be extremely rare for an appellate court to interfere with a lower court’s decision not to grant a ‘without notice’ application for injunctive relief.  That is all that has happened here.  There are no grounds to justify the appeal.  Indeed it would be totally wrong for an appellate court to give injunctive relief at this stage when the merits of the substantive claim have yet to be examined.  Certainly, I have no intention of perusing or considering the affidavits filed by the parties in the Manukau proceeding.

[15]     Mr Parmenter accepts my analysis of the situation which was discussed in an amicable exchange between Bench and Bar.

[16]     Accordingly, for these reasons the appeal is dismissed.

[17]     On  the  basis  of  Mr  Rooney’s  advice  that  costs  to  date  would  be  fairly

minimal, I accept the respondents are entitled to costs.  Costs have been agreed on a

2B scale. There is an order in the respondents’ favour accordingly.

Priestley J