Weingut Seifried Limited v Marr

[2020] NZHC 3016

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2020-442-055

[2020] NZHC 3016

BETWEEN

WEINGUT SEIFRIED LIMITED

First Applicant

AND

JULIET CLAIRE WESTBURY TERENCE JOHN WESTBURY

Second Applicants

AND

JEFFREY RONALD MARR SOPHIE MARR

Respondents

Hearing:	12 November 2020
Appearances:	R Fitchett for the Applicants Respondent, J Marr, appears in Person
Judgment:	13 November 2020

JUDGMENT OF GRICE J

[1]    The first applicant cultivates grapes which are grown for its winemaking business in Redwood Valley Road, Appleby. The second applicants cultivate land in the same vicinity as a commercial nursery and hazelnut orchard.

[2]    The applicants have the benefit of a number of easements for, among other things, the conveyance of water and electricity over other adjoining properties, including that of the respondents. The respondents have a pump shed on their property on which the pumps are housed to feed water to the applicants’ properties.

[3]    A dispute has arisen over the payment of the electricity charges. As a result, the power to the pump shed has been disconnected and a padlock placed on the pump shed so the applicants cannot enter to maintain the pumps.

WEINGUT SEIFRIED LIMITED v MARR [2020] NZHC 3016 [13 November 2020]

[4]    If the lack of water continues, the grapes and the commercial nursery and hazelnuts will be adversely affected, particularly if there is no rain.

[5]    Mr Marr indicated that he had been attempting to resolve a dispute over the payment of power with the first applicant for some years. He said he needed the matter resolved so had arranged for the disconnection of the power. He indicated he would willingly reconnect it in the meantime. However, he needed the dispute over the power and the bills sorted out.

[6]    Mr Fitchett, for the applicants, indicated that he would confer with his clients over the disputed amount of the power bill and arrange payment of his clients’ share of the amounts that have been charged by the power company to Mr Marr. He also indicated that his client was looking for a long-term solution to the dispute.

[7]    I am of the view that the prerequisites for the making of an interim injunction are met. There is a serious question to be tried, that of the right to receive water from the pump shed. The balance of convenience favours the reconnection of the power and allowing access to the pump shed, pending resolution of the dispute between the parties. At present part of the applicants’ properties on which grapes and other produce are grown are not receiving water. The resulting damage to crops could be disastrous.

[8]    On the other hand, the issue concerning the payment of the power bill can be dealt with by requiring a payment into Mr Fitchett’s trust account of the disputed amount. Damages are an adequate remedy in any event. The first applicant has given an undertaking as to damages.

[9]    I note that the application and supporting documents have been served, on a Pickwick basis, on the Marrs. Mr Marr appeared in person at the teleconference. He readily agreed that in the circumstances the power should be reconnected and that access to the powerhouse be reinstated by removal of the padlock.

[10]Accordingly, I make the following orders:

(a)Requiring the respondent provide reasonable access to the power metre by removing the padlock from the pump shed;

(b)Requiring the respondent reconnect the power to the pump shed using a suitably qualified registered professional;

(c)Restraining the respondent from preventing the applicants’ access to the pump shed at 25 Redwood Road, Redwood Valley;

(d)The undisputed amount of $2,699.46 plus GST is to be paid by the first applicant to Mr Marr (if not already paid) on or before close of business on 16 November 2020.

(e)The further sum of $1,495 will be paid into the applicants’ solicitors trust account to be held pending resolution of this dispute or agreement with Mr Marr for payment to him of part or all of that sum.

[11]This matter will be recalled at 10.00 am on 20 November 2020.

[12]   The applicant will file and serve a memorandum setting out progress made in resolving the dispute concerning the power charges and related matters including whether or not there has been agreement reached between the parties on or before midday on 19 November 2020.

[13]   Mr Marr may respond to that memorandum (by way of email) before 5.00 p.m. on 19 November 2020.

Grice J

Solicitors:

Rout Milner Fitchett Solicitors, Nelson Copy to the Respondents