X-Ray Trust Limited v Millbrook Country Club Limited
[2021] NZHC 1749
•13 July 2021
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2021-425-000053
[2021] NZHC 1749
BETWEEN X-RAY TRUST LIMITED
Plaintiff
AND
MILLBROOK COUNTRY CLUB LIMITED
Defendant
Hearing: 17 June 2021 Appearances:
N H Soper for the Plaintiff
J L W Wass for the Defendant
Judgment:
13 July 2021
JUDGMENT OF NATION J
[1] The defendant (Millbrook) has been developing a new golf course on land near Arrowtown. The course is scheduled to open in October 2021. In 2022, Millbrook are to host the New Zealand Open. Millbrook are in the process of building a halfway house as a facility for people visiting or using the new course. The plaintiff (X-Ray Trust) seek an interim injunction restraining Millbrook from continuing with work on the halfway house.
Background
[2] From at least 2014, X-Ray Trust has owned land at 413 Speargrass Flat Road, Queenstown. The directors of X-Ray Trust, Nathan Scott Branch and Brian Ross Cartmell, reside on that land. To the north of their property was a rural property known as Dalgleish Farm. In 2014, Millbrook purchased the Dalgleish Farm. With support from the Queenstown Lakes District Council (QLDC), Millbrook proposed the zoning
X-RAY TRUST LTD v MILLBROOK COUNTRY CLUB LTD [2021] NZHC 1749 [13 July 2021]
of Dalgleish Farm be changed from Rural General Zone to Millbrook Resort Zone. With such zoning, a golf course and various residential units could be built on Dalgleish Farm. The directors of X-Ray Trust say they wanted to preserve the rural character and privacy of their property. They felt the zone change would destroy what they valued in the rural nature of the land and would ruin their expectations of privacy. They filed objections to the proposed zone change.
[3] Millbrook negotiated with X-Ray Trust as to the terms on which X-Ray Trust would withdraw their objection.
[4] Mr Cartmell says the directors acknowledged that a green, well designed golf course could possibly retain some of the natural character of Dalgleish Farm but only on certain specific conditions which were laid out in the agreement. They say that, through an agreement, they wanted to protect their privacy and have certainty going forward regarding land use, housing placement and height, mounding, amenity planting, golf course design, greens placement and more.
[5] X-Ray Trust and Millbrook, each with the benefit of legal advice, entered into a detailed agreement dated 23 December 2016, recording the terms on which X-Ray Trust would withdraw their opposition to the proposed zone change. Clause 17 of the agreement provided:
Millbrook will when called upon to do so by X-Ray Trust at Millbrook’s’ [sic] expense in all things register appropriate covenants against the Covenant Land so as to bind it and its successors in title preventing the further subdivision and/or development of the Covenant Land otherwise than in accordance with the Amended Structure Plan and Rules, the Decisions Version and the Appeal’s Version as the case may be, and Landscaping Solutions.
[6] The reference in cl 17 to the amended structure plan and rules was to the Millbrook Resort Zone Rules in part 6 of QLDC’s Proposed District Plan:
Rule 43.3.13 of the Millbrook Resort Zone rules provided for buildings on the Golf Course and Open Space Activity Area to be discretionary ‘except for utilities, service and accessory buildings up to 40m2 in gross floor area’.
Rule 43.4.8 of the Millbrook Resort Zone rules provided for the consumption of alcohol on premises within the zone between the hours of 11 pm and 8 am to be a non-complying activity.
Rule 43.5.10 of the Millbrook Resort Zone Rules provided for retail sales of food and beverages for golf customers, Millbrook Club Members and residents of Millbrook to be a non-complying activity.
[7]Clause 7 of the agreement said:
X-Ray Trust shall communicate to the Council and the Hearing’s Panel its support of the Amended Structure Plan and the Rules, and shall not in any way directly or indirectly procure, support or encourage any objection from a third party, to the [sic] any aspect of the development proposals of Millbrook referred to in the Amended Structure Plan and Rules.
[8]Clause 8 said:
In the event that Millbrook elects to commence a Private Plan Change or Resource Consent Application it will first consult with X-Ray Trust and if X- Ray Trust, acting reasonably, is satisfied that the proposal is generally in accordance with the Amended Structure Plan and the Rules it will provide a written approval within the meaning of s 104(3)(a)(ii) of the Resource Management Act 1991 (“the Act”) and it may, at its election, provide a submission in support conditional upon the Consent Authority approving the Private Plan Change or Resource Consent Application as lodged and notified which shall not be unreasonably withheld.
[9] The land covenant which Millbrook agreed to provide to X-Ray Trust has been registered over the agreed land, including parts of the golf course and the site of the half-way house. Millbrook covenanted that it will not further subdivide and/or develop the servient tenement “otherwise than in accordance with the Amended Structure Plan”, the rules and the landscaping solutions. The landscaping solutions referred to was a reference to the landscaping solutions, primarily as to mounding and planting which Millbrook had agreed to establish to screen X-Ray Trust’s house site from the proposed residential development on the Dalgleish Farm land and to mitigate the way the golf course could reduce the privacy they valued with their land.
[10] In November 2017, Millbrook provided to X-Ray Trust a set of development proposals and a master plan that were to be associated with a resource consent application. It incorporated the detailed course design and made some minor changes which lowered the proposed height of eight residential lots and lessened the areas of two of those lots to allow for a storm water flow path between them. Millbrook’s director of property and development, Mr Bernard O’Malley, describe the variations as being minor. In submissions for X-Ray Trust, Mr Soper referred to them as not material.
[11] The plan showed, through words and a small rectangular outline, the proposed location of a half-way house on the site where it is presently being built. In a golf course context, the term “half-way house” commonly refers to a shelter/toilet area that would commonly be established around the halfway point of an 18 hole course. The evidence is that such a facility is needed with the course that is being developed because this 18 hole course will not be one that returns to the vicinity of the club house area after nine holes.
[12] There was correspondence between the parties’ lawyers over the new master plan. X-Ray Trust’s solicitors raised a query:
The plans show the identification of a halfway house within the covenant area (as defined in the agreement). I understand this is proposed to house a toilet and coffee shop. It would appear the agreement requires variation to enable development of this building/activity in this location?
[13] The response from Ben O’Malley, Millbrook’s Director of Property and Development, was that “[t]he proposal is for a small toilet block only. Both the rules in the [agreement] and the Decision rules … allow for service buildings up to 40m2.”
[14] X-Ray Trust sought additional concessions from Millbrook before it agreed to sign the affected party approval supporting Millbrook’s application for a resource consent for the amended plans.
[15]The parties signed a variation agreement dated 8 June 2018.
[16] Clauses 1 to 5 and 9 provided for Xray’s directors, Mr Cartmell and Mr Branch, and their guests to have pedestrian and golf cart access to Millbrook in accordance with a licence agreement without charge. Clause 8 provided for Millbrook membership to be provided to Xray free of any application fees or annual dues.
[17] Clauses 6 to 7 required Xray to provide affected party approval to the resource consent application.
[18] The Variation provided an updated Master Plan referring to the half-way house and Land Covenants.
[19] On 23 September 2019, there was an article in a Queenstown newspaper. It reported the golf course designer, Greg Turner’s description of the par five hole and paraphrased him as saying “there will be a fully operational caf[é] sited next to the tee of that hole”. Mr Cartmell said that, sometime later, Mr Turner told him there were no plans for a café.
[20] On 21 December 2018, the QLDC issued, on a non-notified basis, a resource consent for Millbrook to erect a commercial building comprising a toilet and for the retail sale of food and beverage on the proposed site for the half-way house. The resource consent decision summarised the application as being for the erection of a new building, located on the golf course and to comprise toilet facilities as well as the sale of food and beverages to those playing on the golf course. The QLDC considered it was an application for a discretionary activity because it was for buildings within the golf course and open space area, not for utilities, service and was greater than 40 m2 in area. They considered it was for a non-complying activity for the consumption of alcohol within the half-way house between the hours of 11 pm and 8 am and for retail sales of food and beverages for golf customers, Millbrook Club members and residents of Millbrook.
[21] Through its solicitors, X-Ray Trust advised Millbrook it would not agree to construction of a refreshment facility on the covenanted land. There then ensued correspondence between Millbrook and X-Ray Trust’s solicitors. In an email of 17 December 2019, Millbrook said they did not have firm proposals as to how the half- way house might be established, were considering different alternatives, one of which involved “[a] toilet block and shelter with a spot for a seasonal food truck to be set up alongside it”. Millbrook indicated it would like to discuss what it considered to be the options with X-Ray Trust. X-Ray Trust was adamant that the proposal for which Millbrook had consent would be in breach of the covenant. It insisted that Millbrook withdraw the consent which it had obtained.
[22]On 28 January 2020, Millbrook, through an email from Mr O’Malley, said:
We are familiar with the covenant in place and Ian [Millbrook’s counsel] has further clarified the development restrictions it imposes. We have not breached the covenant and would only be in breach if we gave effect to the resource consent that we have. We have no desire to get tangled up in a dispute
with your client on this so do not intend [to] force the issue by proceeding to build a structure that would be in breach of the covenant.
However, we would welcome the opportunity to discuss the possibility of some sort of refreshment outlet at the halfway House toilet block location. As explained, we are not particularly sold on the consented plan even if your client agreed to it. We don’t yet have a firm view on what the best option might be and would welcome suggestions.
[23]On 7 February 2019, X-Ray Trust’s solicitors said:
2. Our client’s clear preference is that there be no refreshment facility in the covenant area. Furthermore, out interpretation of the development restrictions imposed by the covenant is that any sort of retailing (whether from a building or mobile food truck), would be in breach of the covenant.
3. Notwithstanding the above, our client is prepared to engage in good faith discussions regarding the establishment of a refreshment facility in the covenant area, provided the following minimum requirements can be incorporated into agreement regarding such a facility:
(a)Non-objection covenant given by Millbrook in favour of Lots 1 and 2 DP 475822;
(b)Access and Millbrook Membership to run with the land, i.e. Lots 1 and 2 DP 475822;
(c)Membership to include a $5,000.00 monthly credit.
3. Upon confirmation these requirements can be accommodated in any future agreement, our client’s Directors would be prepared to meet and discuss Millbrook’s future plans.
[24] Mr O’Malley responded on 13 February 2020 saying that Millbrook would stick with the agreement.
[25] In February 2021, Millbrook applied for resource consent to allow for the commercial use of a mobile food/beverage caravan at Millbrook to sell both food and beverages throughout the village activity areas, golf course and open space area. Millbrook explained the caravan would be at the half-way house on a day-to-day basis and used in association with functions or events throughout the three specified areas.
[26] The hours of operation, location, nature and scale of the caravan would all be reflective of the associated events. Millbrook would manage the use, location and hours of operation of the caravan to ensure any actual or potential affect on any
residents nearby were avoided or mitigated. The retail activity was said to be complimentary to the anticipated activity within the golf course and open space area outline within the Millbrook Zone Structure Plan. In submitting the application, Millbrook’s planner said overall resource consent was required for a non-complying activity.
[27] Millbrook advised QLDC that it was not seeking a resource consent for the half-way house, as it had earlier, because an alternative building had been designed. Millbrook said they were not seeking a resource consent because the alternate half- way house would have a floor area of 39.8 m2 with a separated outdoor space sheltered by a pergola. The building would have space for toilets, a cleaning storeroom and a small indoor sheltered area. Space is also to be provided for a mobile food truck or caravan to be parked on the side of the outdoor area.
[28] QLDC granted the consent sought on a non-notified basis on conditions that the use of the mobile food truck had to be carried out in accordance with the application as submitted, with further conditions that the hours of operation for the caravan in the golf and open space activity area would be limited from 8 am to 8 pm or daylight, whichever is shorter. There was to be no amplified music associated with the food truck.
[29] On 14 May 2021, X-Ray Trust’s solicitor wrote to QLDC. In that letter, they asserted a resource consent was required for the half-way house because it was not incidental to the activity on the site – namely, playing golf. They said:
While it may be desirable for golfers to have a comfort stop and a resting place, such does not require a 38.2 [m2] enclosed building – with tables, chairs and fire place, and 151 [m2] courtyard furnished with outdoor tables and chairs as depicted on the plan.
[30] They submitted the proposal was more akin to a café and bar. They asserted QLDC had a duty to inform Millbrook that the building did not come within the ambit of the permitted activity rule in the District Plan.
[31] At the same time as Millbrook applied for a resource consent, they applied for a building permit for the half-way house and associated structures. There is evidence
that site preparation started on 13 May 2021. QLDC granted the building consents on 26 May 2021. Construction work followed the issue of the building consent.
[32] On 18 May 2021, X-Ray Trust’s solicitors wrote to Millbrook asserting the half-way house development would be in breach of the agreement dated 23 December 2016 and the covenant subsequently registered over the covenanted land. They required immediate confirmation from Millbrook that it was withdrawing its resource and building consents and threatened they would issue injunction proceedings if Millbrook did not do so.
[33] An application for an urgent interim injunction was made on a Pickwick basis on 2 June 2021. The application for an interim injunction was set down for hearing on 17 June 2021.
[34] On 4 June 2021, by memorandum, counsel advised the Court that they had agreed that, pending the hearing of the interim injunction application, Millbrook would:
Confine construction work to the consented 40 [m2] building only and to suspend any additional work outside that 40 [m2] footprint, including adjoining walls, wood store, pergola, roof louvres and ground works under those elements.
Legal principles
[35] There was no disagreement as to the principles that are to apply to the Court’s consideration of this application.
[36] The applicant must establish there is a serious question to be tried. The claim must not be frivolous or vexatious.1
[37] The balance of convenience must favour the granting of an injunction.2 This involves a consideration of the impact on the parties of the potential granting of, and the refusal to grant, an order.3
1 American Cyanamid Co v Ethicon Ltd [1975] AC 396; and NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90 at [12].
2 NZ Tax Refunds Ltd v Brooks Homes Ltd, above n 1, at [12].
3 At [12].
[38] The adequacy of damages is often a significant consideration in assessing the balance of convenience. If damages would be an adequate remedy for the applicant, then the Court will hesitate to grant an injunction, but it must also factor in any intangible harm that may result before making that determination.4
[39] The Court must then conduct an overall justice assessment reviewing the two prior stages and, where relevant, may take into account factors such as public interest, conduct of the parties and whether the granting or otherwise of injunctive relief would “determine the fate of the litigation”.5
Discussion
The first stage
[40] There are a number of issues which would have to be determined at trial if matters are not resolved before then.
With all the proposed elements of the planned half-way house, can it truly be considered a half-way house as that term is used when associated with a golf course?
[41] Millbrook says the proposed half-way house is what could be expected of such a facility on a world-class championship golf course, which it intends the new course to be. X-Ray Trust says a half-way house need only provide shelter and toilets, consistent with the descriptions Millbrook initially gave.
If the development can properly be described as a half-way house, is the erection of this half-way house in breach of the agreements and/or the covenant?
[42] X-Ray Trust says the development is in breach because the selling of food from a mobile caravan and the erection of the building and associated structures are not permitted activities in terms of the rules for the Millbrook Resort Zone.
[43] Millbrook says that is not how the agreements and covenant are to be interpreted. Millbrook says they did not prohibit any future development of Millbrook land in accordance with its agreed purpose, that is the development of the golf course
4 American Cyanamid Co v Ethicon Ltd, above n 1; and Gilks v Marsh (1982) 1 NZCLC 95 (HC).
5 McKay Electrical (Whangarei) Ltd v Hinton 1 NZELR 191 (CA) at [25].
and facilities properly associated with it. Millbrook says that what the agreement ensured was that any future development or changes would have to be considered in terms of the objectives, policies and rules of the Millbrook Resort Zone. The agreement thus contemplated that there could be further developments provided they were consented to by QLDC subject to all matters that had to be considered in terms of the Resource Management Act and QLDC’s District Plan.
As to issues of interpretation, was Mr O’Malley’s communication that Millbrook would not be proceeding with the development as consented to on 21 December 2019 consistent with Millbrook intending the agreement was to be interpreted in the manner X-Ray Trust contends for?
[44] Millbrook says, as a matter of law, this conduct cannot be relied upon to allow the parties to depart from the words used in the agreements and covenant. Millbrook also argues those documents were carefully drafted with the benefit of legal advice. Clause 33 of the agreement of 23 December 2016 says:
This Agreement is the entire agreement between the parties in relation to the subject matter of the Agreement and it replaces all earlier negotiations, representations, warranties, understandings and agreements, whether oral or written between the parties.
[45] Millbrook contends that clause also applies to the variation agreement.6 X- Ray Trust say this clause applies only to the 23 December 2016 agreement. As a matter of law, Mr O’Malley’s communication does inform the way the agreements and covenant are to be interpreted.
If the agreements and the covenant are to be interpreted as contended for by X-Ray Trust, was the erection of the half-way house, including associated structures, a permitted activity under the rules for the Millbrook Resort Zone?
[46] Millbrook says, as far as the construction is concerned, the half-way house is for a permitted activity. It says this is because rule 43.4.13 of the proposed District Plan provides that the construction of buildings in the golf course activity area is a permitted activity where they are “utilities, service and accessory buildings up to 40 m2 in gross floor area”. It says the half-way house for which Millbrook has obtained
6 Clause 15 of the Variation Agreement states “Except as expressly varied by this variation agreement, the terms and conditions contained and implied in the Agreement will continue and remain in full force and effect”.
building consent is less than 40 m2. In terms of the rules, Millbrook contends that none of the ancillary structures qualify as a “building”. It says accessory building is referred to in the rules as “any detached building the use of which is incidental to the principal building, use or activity on that site”. They say “building”, as defined in the rules, has the same meaning as the Building Act 2004, with the following exemptions in addition to those set out in the Building Act 2004:
a. fences and walls not exceeding 2m in height;
…
c. structures less than 5m2 in area and in addition less than 2m in height above ground level;
…
e. uncovered terraces or decks that are no greater than 1m above ground level;
…
j. pergolas less than 2.5 metres in height either attached or detached to a building.
[47] Millbrook says the woodshed is not connected to the main building and is less than five m2 in area and less than two metres in height. The pergolas are less than 2.5 metres in height and are not connected to the building but, under the rules, would not be part of the building even if they were. The associated outdoor walls are less than two metres high. The paving under the pergolas is expressly excluded as being part of the building.
[48] X-Ray Trust says all structures have to be considered as part of a whole, consistent with the definition in the Building Act that building:7
… includes any two or more buildings that, on completion of building work, are intended to be managed as one building with a common use and a common set of ownership arrangements.
[49] It also says that one of the pergolas is not excluded from the definition of building in the rules because it will be a covered structure with louvres.
7 Building Act 2004, s 8(1)(c).
[50] There are thus issues between the parties. On a few of those issues, some brief further evidence might be required. The issues however are not such that it can be said the X-Ray Trust is bound to succeed.
[51] Through submissions for X-Ray Trust, it was accepted that, in terms of the rules for the Millbrook Resort Zone, the half-way house would be a permitted structure if it was built without the pergolas.
[52] Millbrook accepted that the activity of selling food and beverages at the half- way house, including from a mobile caravan, was not a permitted activity under the rules. It was for that reason they had obtained a resource consent for that activity. They claimed, and it appeared to be accepted by X-Ray Trust, that they would be able to provide food and beverages from the half-way house provided it was not through selling them.
[53] It thus seemed to be accepted by X-Ray Trust that establishment of the half- way house would be a permitted activity and thus allowed in accordance with the agreements and covenant if it is built as planned with the indoor shelter area, toilet, cleaners storage area, separate wood shed, outside walls and paved area. Also, that Millbrook would be able to provide food and beverages from a caravan at the site provided they were not selling such items.
[54] I do not consider it is seriously arguable that the proposed half-way house is not ancillary to the principal activity on the land, being the golf course. QLDC processed the resource consent applications on the basis it was ancillary to the golf course. The half-way house is to be located some 3.5 km from the central Millbrook village area. The only people having access to the site will be those playing golf on the course or approved as visitors to the course for the purpose of participating in events, such as the New Zealand Open, which might be held at the course.
The second stage
[55] At the second stage, for X-Ray Trust to obtain the benefit of an interim injunction, the balance of convenience must clearly favour such a remedy.
[56] In entering into the original agreement, the variation agreement and in requiring the covenant, X-Ray Trust and its directors were wanting to ensure, as far as they could, they would continue to enjoy the privacy of their land. They wanted to limit their exposure to the residential developments which were to take place on the Dalgleish Farm land.
[57] The evidence presented at this stage shows that, at significant cost, Millbrook, as agreed, have established carefully designed mounds which significantly limit the view that people on the course would have of the house and associated courtyard area on the X-Ray Trust land. As consented, there is to be further planting to screen the half-way house from certain directions.
[58] The half-way house is located some 100 metres from the X-Ray Trust land. Because the house is going to be used in association with golfing activities, it is unlikely to be utilised outside daylight hours. There are noise constraints associated with the resource consent that has been granted. If food and beverages are to be sold at the site (and Mr O’Malley said they may not be), in accordance with conditions attached to the resource consent, this would have to be managed so as to not adversely affect the nearby residents.
[59] The evidence before me at this stage indicates it is likely only the ridgeline of the half-way house would be visible from the X-Ray Trust land. It appears from Mr Cartmell’s evidence that people would only be able to view the half-way house site from certain locations on the X-Ray Trust land, being a spot on the top of the mound which has been established to screen the home from structures on the Dalgleish Farm land, and the area between this mound and the boundary of the property.
[60] The half-way house, for which a building consent has been issued, is architecturally designed.
[61] Accordingly, if there is to be any loss of amenity to the directors and the X- Ray Trust through the establishment of the half-way house prior to the determination of these proceedings at a substantive hearing, it is likely to be slight.
[62] Consistent with that, when Mr O’Malley indicated he would be willing to discuss potential options for the half-way house with the directors, the response from X-Ray Trust’s solicitors was not to address any issue over loss of amenity but to seek substantial financial payments to the X-Ray Trust and rights to the golf course that would attach to X-Ray Trust’s land and thus likely increase its value. Counsel acknowledged that, in setting those as conditions for further discussion, the X-Ray Trust was seeking to obtain a commercial advantage from the agreements it had originally negotiated, essentially to use them as leverage for monetary gain.
[63] On the other hand, I accept there would likely be significant detriment to Millbrook if it is not able to complete all work associated with the half-way house as already planned and in one episode. There would be additional costs in having contractors move off-site and then having to return at some later date. There could well be a risk that, with such contractors having other commitments, it would be difficult to have them return to the project as soon as required. Just as importantly, if construction were to be halted now, there would, in all likelihood, be a delay in completing the construction, even as to those parts which are not in dispute, beyond the date scheduled for the opening of the course in October 2021. With such a delay, there would also be difficulties for construction workers in completing what further work might ultimately be permitted and required of them when it could be expected that players would be on the course and those working on-site might be at risk.
[64] It is difficult to predict now and it would be difficult to quantify in the future what the potential costs and other detriments to Millbrook would be of construction now being halted. It is not the sort of detriment that could be easily remedied through an award of damages. With the concessions made through submissions, it seems unlikely that X-Ray Trust would be able to persuade a court that Millbrook would be in breach of the agreements or covenants if they were to build the half-way house as planned but without the pergolas. Should X-Ray Trust ultimately succeed in the substantive proceedings, it would likely mean Millbrook would then have to remove the pergolas. If that were to happen, there would have been no permanent loss of damage to X-Ray Trust’s interests or the amenities they sought to protect through the agreements they entered into and the covenant. In contrast, the detriment to Millbrook
through the grant of an interim injunction would be significant and hard to quantify in financial terms.
[65] Accordingly, I find the balance of convenience favours Millbrook and the refusal of an interim injunction.
The third stage
[66]At the third stage, I consider the overall interests of justice.
[67] The evidence before the Court at this stage suggests the parties entered into agreements to ensure Millbrook could proceed generally with the golf course development as originally planned. The X-Ray Trust directors were to have protection as to their privacy but were to have the benefit of enjoying the outlook, onto a world- class championship golf course. There appear to have been instances where X-Ray Trust has attempted to leverage a commercial advantage for itself through being located next door to Millbrook’s land and the agreements it entered into. That may well have resulted in Millbrook being slower than they could have been in advising the X-Ray Trust’s directors of plans to continue with the development of the golf course.
[68] The granting of an interim injunction at this stage would likely further damage the relationship between the parties. It would probably reduce the potential for them to successfully enter mediation over their differences. In that regard, in considering the interests of justice overall, it is also relevant that the parties stated in their initial agreement that, if a dispute arose between them, either party could have sought a meeting to discuss those differences. If that meeting was not successful, then the dispute may have been referred to mediation by either party. There may well still be potential for that to happen, even if it is not obligatory in terms of the agreement.
[69] Given my determination as to where the balance of convenience lies, I am satisfied the overall interests of justice do not require me to issue an interim injunction at this stage.
Result
[70] X-Ray Trust’s application for an interim injunction is refused. My tentative view is that Millbrook are entitled to costs on the application but I reserve my final determination as to that until either the result of the substantive proceedings is known or, if there is no such determination, either party seeks costs.
[71] The proceedings are now adjourned for a further case management conference at 9.15 am on 10 August 2021. Counsel are to file a joint memorandum as to the steps which are now to be taken to take the proceedings through to a substantive hearing if that is required.
Solicitors:
N H Soper, Barrister, Queenstown-Lakes J L W Wass, Barrister, Wellington.
0