XENA CUISINE LIMITED AND FEATURE PROPERTIES LIMITED

[2005] NZHC 1763

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2005-404-2448

BETWEEN

XENA CUISINE LIMITED

Plaintiff

AND

FEATURE PROPERTIES LIMITED

Defendant

Hearing:         12 May 2005

Appearances: K Berman for Plaintiff

Mr Kendall for Defendant (in person) Judgment:  12 May 2005

JUDGMENT OF SIIMON FRANCE J

Counsel:

Mr K W Berman, PO Box 105 358, Auckland City Defendant:

Feature Properties Limited, 233 Meola Road, Pt Chevalier, Auckland 1002

XENA CUISINE V FEATURE PROPERTIES HC AK CIV 2005-404-2448 [12 May 2005]

[1]This is an application by the plaintiff for an interim injunction.

[2]        The plaintiff is a caterer who operates out of a building owned by the defendant.

[3]        Before me today the defendant company is represented by Mr Graeme Kendall, who is a director of the company. He appears without objection from the plaintiff.

[4]        Affidavits have been filed by Mr Ali Al-Ali, who is a shareholder of the plaintiff, and by Mr Kendall on behalf of the defendant.

[5]        It is apparent from the hearing before me today that there have been disputes concerning the lease and tenancy of the property for some time. Without necessarily being an exhaustive list, the matters include the amount that Mr Kendall should be reimbursed for improvements he made to the premises to enable Xena Cuisine Limited to get started, a dispute over fixing the rent pursuant to what appears to be a two-year rent review clause in the agreement to lease, various issues concerning utilities and in particular the amount owing as payment of water rates, and access for Auckland MetroWater to the site. Mr Kendall adds to the list matters relating to the costs in preparation of the lease and the valuations.

[6]        I have had the benefit today of hearing from Mr Kendall as well as Mr Berman. It is clear that Mr Kendall is frustrated over the delays, and Mr Berman accepts that there is valid reason for him to be frustrated. However, on either  Sunday evening or Monday morning of this week, Mr Kendall in effect re-entered the premises and sought to prevent the occupancy by Xena Cuisine Limited. By a means not apparent to me, Xena Cuisine Limited managed to remedy the situation and retake possession. At the same time there was then a problem experienced with the access of water to the premises. Apparently this problem affected not just Xena Cuisine Limited but all the tenants on the site. The parties are in dispute as to what might be the cause of that obstruction to water supply.

[7]        Mr Kendall raised with me his concerns that, during the course of these protracted and obviously at times not amicable discussions, there have allegedly

been threats by the plaintiff to both prevent access to the utilities, and also to prevent physical access of the other tenants to their premises. Seemingly, the shop occupied by Xena Cuisine Limited has some capacity to implement such impediments.

[8]        Both parties seek resolution of the matter, and from the outside it is a situation that certainly ought to be able to be sorted. I am fully satisfied that it is appropriate for this Court to issue interim orders to hold the situation pending either progress of the Court proceedings, or more productive discussions between the parties.

[9]        I proposed to both parties the orders I am going to make, and the parties were in agreement with them. Accordingly, I direct that, pending further order of this Court:

a)the defendant shall not re-enter the premises held by the plaintiff as a tenant, or terminate the lease, or otherwise purport to enforce any re- entry or termination that has purportedly previously occurred;

b)neither party shall act in a way that impedes the provision of utilities to the site. By site I mean the site as a whole, and not just the  premises occupied by the plaintiff;

c)the plaintiff shall not take any steps to prevent the physical access of the other tenants to their premises.

[10]      The matter is referred to the next available Associate Judge duty list for timetabling of the substantive proceedings. I recommend that consideration be given to an early settlement conference should the parties not be able to themselves settle the matter. The Registry is to advise the date.

[11]Costs on this application are reserved.

Simon France J