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 are two matters which favour Prestige:

(a)First, if I make the order sought, it is unclear whether Prestige will be capable of complying with the order. Moving the house is not a simple thing and interim mandatory injunctions should not be made where compliance is complicated. I respectfully adopt the following observation of Jagose J:1

To the extent the application seeks a mandatory injunction (requiring the defendant to do things), rather than a prohibitory injunction (requiring the defendant not to do things), such relief is granted more rarely. As Thomas J writes, citing McGechan’s commentary, a mandatory injunction ought to be granted on an interlocutory application:2

… only in special circumstances, and then only in clear cases either where the Court thinks that the matter ought to be decided immediately or where the injunction is directed at a simple and summary act, which could be easily remedied or where the defendant has attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the Court has to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than is required for a prohibitory injunction: Locabail International Finance Ltd v Agroexport [1986] 1 All ER 901 (CA).

(b)Second, damages is an adequate remedy in this case. It is true that if the house is demolished Mr and Mrs Vogel will be greatly inconvenienced and their plans to move a house to their land will be set back significantly. But their loss can be calculated and form the basis of a claim against Prestige.

[8]    Standing back, I consider the overall interests of justice favour Prestige when it comes to the making of this mandatory interim injunction.

1      Te Tumu Miere Ltd (In Liq) v Zelande Ltd [2019] NZHC 1 at [13].

2      Precast NZ Ltd v Anystep Ltd [2016] NZHC 377 at [44] citing Andrew Beck and others McGechan on Procedure (online ed, Brookers) at [HR7.53.23].

Decision

[9]    I decline the application. If Prestige seeks costs it can file its memorandum within five working days of the date of this judgment. Mr and Mrs Vogel may take a further five working days to reply.

[10]   I record my advice to counsel that this is a case which cries out for pragmatic resolution. If it is possible for Prestige to move the house then it is in its interests to do so. Failure to move the house will result in a lengthy and expensive lawsuit. Its costs will be high, and it will be exposed to the risk of damages.

[11]   Similarly, Mr and Mrs Vogel should be pragmatic about making concessions which will incentivise Prestige to move the house.

Brewer J