Wake Up Commercial Limited v Extension Capital Limited

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1239

[2022] NZHC 3485

BETWEEN
WAKE UP COMMERCIAL LIMITED

First Applicant

M J O’BYRNE as trustee of the KRM FAMILY TRUST

Second Applicant

AND

EXTENSION CAPITAL LIMITED

Respondent

Hearing: 17 October 2022

Appearances:

E Morrison for the applicants J Burt for the respondent

Result Judgment:

16 December 2022

RESULT JUDGMENT OF ROBINSON J

This judgment was delivered by me on 16 December 2022 at 12:00pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:
K3 Legal, Auckland
Vince & Rice, Auckland

Counsel:
J Burt, Auckland

WAKE UP COMMERCIAL LIMITED v EXTENSION CAPITAL LIMITED [2022] NZHC 3485 [16 December 2022]

[1] For reasons set out in a separate judgment to be issued next week, the first and second plaintiffs’ application for an interim injunction restraining the defendant from taking steps to registered mortgage instrument 12366013.1 is dismissed.

[2] For the avoidance of doubt, the interim orders issued on a without notice basis by Moore J at paragraph 23 of his judgment dated 27 July 2022 are rescinded.

[3] The defendant wishes to be heard on costs. It may be possible for this to be dealt with on the papers. Mr Burt should file a memorandum suggesting appropriate timetable directions, by consent if possible.

Robinson J

CaseChat Overview and Summary

Wake Up Commercial Limited and M J O’Byrne as trustee of the KRM Family Trust (collectively referred to as the applicants) brought an action against Extension Capital Limited (the respondent) in the High Court of New Zealand, Auckland Registry. The applicants sought an interim injunction to prevent the respondent from registering a mortgage over certain property. The dispute centred around a mortgage instrument, specifically instrument number 12366013.1, which the respondent intended to register. The applicants argued that the registration of this mortgage would infringe upon their rights and interests in the property.

The legal issues before the court involved the interpretation of the mortgage instrument, the validity of the respondent's actions, and the applicants' entitlement to an interim injunction. The court had to determine whether the applicants had a sufficient likelihood of success in their claim at trial to warrant the grant of an interim injunction. Additionally, the court considered the balance of convenience and whether the harm to the applicants if the injunction were not granted outweighed any harm to the respondent if it were granted.

Robinson J dismissed the applicants' application for an interim injunction, noting that the previous interim orders issued by Moore J were rescinded. The court found that the applicants had not demonstrated a strong enough case to justify the grant of an interim injunction. The judge also acknowledged the respondent's request to be heard on the matter of costs and suggested that the issue could potentially be resolved through a memorandum filed by the respondent's counsel.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	17 October 2022
Appearances:	E Morrison for the applicants J Burt for the respondent
Result Judgment:	16 December 2022