Tucker v Musson Building Services Limited

[2017] NZHC 2113

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-001996 [2017] NZHC 2113

BETWEEN

JAMES PATRICK TUCKER,

NICHOLAS RONALD TUCKER TRUSTEES OF THE TUCKER TRUST, CLAIRE CHRISTINE ENDEAN AS PARTNERS OF THE TUCKER TRUST/ENDEAN PARTNERSHIP Plaintiffs

AND

MUSSON BUILDING SERVICES LIMITED

First Defendant

ANDREW ROSS MUSSON Second Defendant

JAMES STARNES Third Defendant

Hearing:	(On the papers)
Counsel:	D Grove for Plaintiffs
Judgment:	31 August 2017

JUDGMENT OF JAGOSE J

This judgment is delivered by me on 31 August 2017 at 4.30pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Counsel/Solicitors:

Daniel Grove, Barrister, Auckland

Dawsons Lawyers, Howick, Auckland

TUCKER & ORS v MUSSON BUILDING SERVICES LTD  [2017] NZHC 2113 [31 August 2017]

Introduction

[1]      The  plaintiff  seek  a  without  notice  interim  injunction,  requiring  the

defendants to return cedar cladding removed from the plaintiffs’ property.

[2]      Interim injunction applications are determined on the basis of whether the plaintiffs have a serious question for trial, and whether the balance of convenience and overall interests of justice favour granting the injunction.1

[3]      Without notice applications may only be determined if I am satisfied on specified grounds the application can properly be dealt with without notice.2

Factual background

[4]      The plaintiffs contracted the defendants to build a house in Kohimarama. The contract entitles the defendants to repossess goods or material delivered to site after unremedied expiry of notice the plaintiffs have failed to make due payment.

[5]      Cedar cladding for the house was delivered to site. The defendants invoiced the plaintiffs for the cladding in March 2017, and the plaintiffs paid the invoice in April 2017. In July 2017, the plaintiffs cancelled the contract with the defendants, and contracted another builder to remedy and complete the building works.

[6]      In August 2017, the plaintiffs discovered half the cedar cladding had been removed from the site. Discovery of its removal was concealed by staging erected under a tarpaulin, to make it appear all the cladding remained on site.

[7]      A police investigation located the cedar cladding at the second defendant’s home. Police advised the plaintiffs the defendants claimed entitlement to remove and retain the cladding.

[8]      After the cladding was removed, the defendants are said to have issued the plaintiffs with several invoices (which are not in evidence). The plaintiffs deny any

1      American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL); Klissers Farmhouse Bakeries Ltd

[1985] 2 NZLR 129 (CA).

2      High Court Rules, r 7.46.

liability to pay the invoices.    The defendants have not issued any notices to the plaintiffs of failures to pay.

[9]      The plaintiffs’ demand of the defendants for the claddings’ return have gone

unanswered.

Considerations

Interim injunction

[10]     I  accept  the  plaintiffs  have  a  serious  case  for  trial,  and  the  balance  of convenience and overall justice favours granting of interim relief:

(a)      the defendants’ contentions they are entitled to possession of the cedar cladding removed from the plaintiffs’ property are at odds with their advice property in the cladding reverts to the plaintiffs on their payment for it. Payment was made on 4 April 2017. The defendants have not justified their continued retention in the face of the plaintiffs’ demand  for  the  claddings’ return,  meaning  the  plaintiffs’ claim  is likely made out;

(b)refusal of interim relief would be harder on the plaintiffs, if ultimately successful, than would granting interim relief now be on the defendants, if they prevailed at trial. It is material the plaintiffs have paid the defendants for the cladding, which tips the balance of convenience firmly onto the side of the plaintiffs; and

(c)      the defendants’ apparent concealment of the claddings’ removal from the plaintiffs’ property, and their failure to respond to the plaintiffs since, despite their apparent explanations with the police, means overall justice favours grant of interim relief

Without notice applications

[11]     I am  also satisfied  the ground in High Court  Rule 7.46(3)(a) is  met.  In particular, I am satisfied the plaintiffs would be prejudiced by being required to proceed on notice.

[12]     That  is  because,  on  the  evidence  before  the  Court,  I accept  notice  may incentivise the defendants to dispose of the cedar cladding removed from the plaintiffs’ property. I am fortified in that view by the measures taken to conceal the cladding’s removal from the plaintiff ’s property, the involvement of and advice to the police by the defendants as to their right to possession of the cladding, the changes in the defendants’ financial and domestic arrangements, and the absence of any response to the plaintiffs’ request for return of the cladding.

Decision

[13]     In those circumstances, I determine the application can properly be dealt with without notice.

[14]     However, I am not prepared to make the mandatory orders sought. I am concerned not to create further problems in liability for transportation and receipt of the cladding. Instead, I:

(a)      order, pending further order of this Court, the defendants may not give possession of or property in the cedar cladding removed from the plaintiffs’ property to any person other than the plaintiffs;

(b)direct the proceeding (including this judgment) be served on the defendants, and service be advised to the registry; and

(c)       adjourn the proceeding to the first duty judge list after service. [15]   Costs are reserved.

Jagose J