Wendco (NZ) Limited v Howley - [2023] NZHC 2061

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000981

[2023] NZHC 2061

UNDER Part 19 of the High Court Rules 2016 and articles 9, 17A and 17B of Schedule 1 of the Arbitration Act 1996

BETWEEN

WENDCO (NZ) LIMITED

Applicant

AND

JOSEPH HOWLEY, L’EMIRA RANIA HOWLEY and ED JOHNSTONE & CO

TRUSTEES LIMITED as trustees of the J HOWLEY FAMILY TRUST

Respondents

Hearing: 17 July 2023

Appearances:

L M Van and J E Morton for Applicant G J Kohler KC for Respondents

Judgment:

4 August 2023

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 4 August 2023 at 1:30 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………..

Counsel/Solicitors:
Anthony Harper, Auckland G J Kohler KC, Auckland M A Ashmore, Auckland Castle Brown, Auckland

WENDCO (NZ) LIMITED v HOWLEY [2023] NZHC 2061 [4 August 2023]

[1] The applicant, Wendco (NZ) Ltd (Wendco), seeks interim orders restraining the respondents, the trustees of the J Howley Family Trust (the Trust), from taking certain steps in relation to premises at 620 Great South Road in Greenlane, Auckland (the Greenlane Premises) pending the outcome of an arbitration which Wendco has sought to institute but to which the Trust has not agreed.

[2] The Greenlane Premises, comprising land and buildings, are owned by the Trust. Wendco operates a Wendy’s hamburger restaurant at the Greenlane Premises.

[3] The Trust has owned the Greenlane Premises since February 2002 when it purchased the property from Wendy’s Restaurants (NZ) Ltd (Wendy’s NZ). Since August 2001, Wendco has occupied the Greenlane Premises under an agreement to lease concluded with Wendy’s NZ (the Lease). Whether Wendco still has a right to occupy the premises is one of the issues in dispute.

[4] The Trust opposes the orders sought by Wendco. It has undertaken, however, not to re-enter the Greenlane Premises or otherwise interfere with the premises pending the Court’s determination of Wendco’s application.

[5] At the hearing on 17 July 2023, I was informed by Ms Van, counsel for Wendco, that, at the request of Wendco, the New Zealand Law Society has appointed Hon Raynor Asher KC as arbitrator. I was informed by Mr Kohler KC, counsel for the Trust, that the Trust does not oppose that appointment and will agree to arbitration if I grant the orders sought by the Trust. However, if I decline to grant the orders because I am not satisfied that there is a reasonable possibility that Wendco will succeed on the merits of its claim, the Trust will not agree to arbitration. Mr Kohler said that Mr Asher would take no steps in the arbitration until I have issued my decision.

[6] Both counsel agreed that my task is to decide Wendco’s application for interim orders. It is not to rule on the merits of Wendco’s reference to arbitration.

Relevant background

[7] The following account is drawn principally from affidavits sworn by Danielle Lendich, the Chief…

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: [2023] NZHC 2061
Decision Date: 4 August 2023

CaseChat Overview and Summary

Wendco (NZ) Limited sought interim orders in the High Court of New Zealand to prevent the trustees of the J Howley Family Trust from using the Greenlane Premises other than as a Wendy's Hamburger Restaurant and to stop them from terminating Wendco's lease of the premises. The Trust opposed the application and had agreed not to interfere with the premises pending the court's determination. The court had to decide whether Wendco had a reasonable possibility of succeeding on the merits of its claims that the Trust agreed in 2018 to renew the lease and that the Trust was precluded by an addendum from using the premises other than as a Wendy's Restaurant.

The court found that there was no reasonable possibility that Wendco would succeed on the merits of its claims. The documentary evidence from July 2018 to February 2023 showed that no binding agreement was made in 2018 to renew the lease. The addendum did not have the effect contended for by Wendco as it was intended to apply only during the currency of the lease. The court concluded that Wendco had not satisfied the requirements of art 17B(1)(c) of sch 1 of the Arbitration Act and dismissed the application. The court also discharged the earlier order made by another judge prohibiting the Trust from terminating the lease. The Trust was entitled to costs on a 2B basis.

Orders