ALPINE SOUTH FISHING LIMITED (in Receivership) & ANOR v KIM & ORS [2018] NZHC 2579

ALPINE SOUTH FISHING LIMITED (in Receivership) & ANOR v KIM & ORS [2018] NZHC 2579

Although the plaintiffs raised serious questions to be tried, the balance of convenience favors the defendants because the loan principal of at least NZ$150,000 remained unpaid, the Roydale Avenue property is owned by the company and is the only available asset to satisfy the debt, and damages would be an adequate remedy if the sale was later found improper; accordingly the interim injunction should not be continued and the sale may proceed.

Citation
[2018] NZHC 2579
Parties
First Plaintiff: ALPINE SOUTH FISHING LIMITED (in Receivership); Second Plaintiff: HYUN CHOI; First Defendant: SANG HEE KIM; Second Defendants: IAN ANDREW NELLIES & KEITH VINCENT HARRIS (as Receivers of Alpine South Fishing Limited in Receivership)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
2 October 2018
Procedural Posture
Injunction Application (interlocutory) / Decision on Interim Injunction (interlocutory)
Outcome
Application for interim injunction dismissed; interim injunction not confirmed
Legal Topics
Interim Injunction, Receivership, Security Agreement, Non Est Factum, Contractual Mistake, Unconscionability, Oppressive Interest Rate, Service of PLA Notice, Appointment of Receivers, Balance of Convenience
Contract Law Equity Property Law Commercial Law Civil Procedure Insolvency/receivership Consumer Protection (fair Trading Act) Interim Injunction +9 more

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Parties

ALPINE SOUTH FISHING LIMITED (in Receivership)

First Plaintiff

HYUN CHOI

Second Plaintiff

SANG HEE KIM

First Defendant

IAN ANDREW NELLIES & KEITH VINCENT HARRIS (as Receivers of Alpine South Fishing Limited in Receivership)

Second Defendants

Procedural Posture

Injunction Application (interlocutory) / Decision on Interim Injunction (interlocutory)

Legal Issues

  1. 1 Whether there is a serious question to be tried on plaintiffs' causes of action (non est factum, Fair Trading Act, contractual mistake, unconscionability)
  2. 2 Whether the balance of convenience favors continuing the interim injunction restraining sale of the Roydale Avenue property
  3. 3 Whether the defendants' appointment of receivers and PLA notice were valid

Ratio Decidendi

Although the plaintiffs raised serious questions to be tried, the balance of convenience favors the defendants because the loan principal of at least NZ$150,000 remained unpaid, the Roydale Avenue property is owned by the company and is the only available asset to satisfy the debt, and damages would be an adequate remedy if the sale was later found improper; accordingly the interim injunction should not be continued and the sale may proceed.

Court Disposition

Application for interim injunction dismissed; interim injunction not confirmed

Orders

  • Interim injunction restraining sale of 147 Roydale Avenue not continued
  • Defendants entitled to costs on a 2B basis