Vogel v Prestige Building Removals Ltd - [2021] NZHC 1168

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2021-419-97

[2021] NZHC 1168

IN THE MATTER of breach of contract

BETWEEN

SHELLEY LYNN VOGEL and BRET ALLEN VOGEL

Plaintiffs

AND

PRESTIGE BUILDING REMOVALS LTD

Defendant

Hearing: 24 May 2021 (by telephone)

Counsel:

A C N Fuiava for Plaintiffs W D Bennetti for Defendant

Judgment:

24 May 2021

JUDGMENT OF BREWER J

This judgment was delivered by me on 24 May 2021 at 4:45 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Denham Bramwell (Manukau) for Plaintiffs Wende Bennetti (Hamilton) for Defendant

VOGEL v PRESTIGE BUILDING REMOVALS LTD [2021] NZHC 1168 [24 May 2021]

[1] On 13 May 2021, Mr and Mrs Vogel commenced proceedings against Prestige Building Removals Ltd (“Prestige”) seeking specific performance of an alleged contract to move a house (“the house”) from its existing location to a property owned by Mr and Mrs Vogel.

[2] On the same day, Mr and Mrs Vogel filed an application without notice for specific performance. The application was made in reliance on r 7.23 of the High Court Rules. However, that is an empowering rule and does not create a separate species of application.

[3] In my Minute of 18 May 2021, I directed that service be effected on Prestige and that a telephone conference be convened. I heard from the parties on Monday, 24 May 2021.

[4] There is urgency in this matter. The house was given to Mr and Mrs Vogel by its owners because the owners are to build a new house on their land. They intended to demolish the house, and will still do so if it is not removed by 31 May 2021. In other words, if Mr and Mrs Vogel do not move the house by 31 May 2021 they will lose it.

[5] For the purposes of the hearing on 24 May 2021, I chose to treat the application without notice for specific performance as an application for a mandatory interim injunction.

[6] Mrs Vogel provided a comprehensive affidavit setting out the background to the dispute. I am satisfied there is a serious question for trial on whether there is a concluded contract between Mr and Mrs Vogel and Prestige pursuant to which Prestige is obliged to transport the house. But, there are a number of other issues as to whether Prestige is currently obliged to transport the house. These include preparation of the site where the house is currently located, the obtaining of third party consents to tree removal and disconnection of power lines, and the extent to which the house has to be dismantled in order for it to be transported. I cannot form a clear view on those matters on the materials before me.

[7] The balance of convenience, in this case, favours Prestige. I am aware, of course, of the significant financial loss to Mr and Mrs Vogel if the house is demolished because they cannot move it. But there…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 1168
Decision Date: 24 May 2021

CaseChat Overview and Summary

Shelley Lynn Vogel and Bret Allen Vogel brought an action against Prestige Building Removals Ltd for specific performance of a contract to move a house from one location to another. The Vogels filed an application without notice for specific performance, which Brewer J treated as an application for a mandatory interim injunction. The primary issue was whether the court should grant an interim mandatory injunction compelling Prestige to move the house. The Vogels argued that the house would be demolished if not moved by the end of May 2021, resulting in significant financial loss to them. However, Brewer J found that the balance of convenience favoured Prestige, as it was unclear whether Prestige could comply with the order and damages would be an adequate remedy for the Vogels.

Brewer J considered several factors in determining the balance of convenience. Firstly, moving the house was not a simple task, and there was no guarantee that Prestige could comply with the order. Secondly, the Vogels' loss could be calculated and formed the basis of a claim against Prestige. Brewer J also noted that the overall interests of justice favoured Prestige, as a mandatory interim injunction would be granted only in special circumstances, and there were no clear cases where the court thought the matter should be decided immediately or where the injunction was directed at a simple and summary act. Therefore, Brewer J declined the application for a mandatory interim injunction.

Brewer J advised both parties to seek a pragmatic resolution to the dispute. If it was possible for Prestige to move the house, it was in its interests to do so, as failure to move the house would result in a lengthy and expensive lawsuit with high costs and the risk of damages. Similarly, the Vogels should be pragmatic about making concessions that would incentivise Prestige to move the house.

Orders