AOKAUTERE LAND HOLDINGS LIMITED v PALMERSTON NORTH CITY COUNCIL [2020] NZHC 873

AOKAUTERE LAND HOLDINGS LIMITED v PALMERSTON NORTH CITY COUNCIL [2020] NZHC 873[1 May 2020]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECIV-2020-454-24[2020] NZHC 873BETWEEN AOKAUTERE LAND HOLDINGSLIMITEDApplicantAND PALMERSTON NORTH CITY COUNCILRespondentOn the papers:Counsel: G J Woollaston for ApplicantJudgment: 1 May 2020JUDGMENT OF CHURCHMAN JApplication[1] By interlocutory application filed on 30 April 2020, the applicant has applied,without notice, for an interim injunction.[2] The applicant seeks to injunct the Palmerston North City Council (PNCC) fromproceeding with any further hearings or related steps in relation to a designation setout in a Notice of Requirement dated 18 December 2019 pending further order of theCourt.[3] The grounds upon which the order is sought is that there is that there is a seriousissue that the Notice of Requirement process was invalid. The applicant asserts that"absent intervention via urgent relief the Plaintiff's rights entitlements and interestas registered proprietor of the subject land will be improperly impinged upon". It isalso alleged that damages would not be an adequate remedy if the respondent is notrestrained from conducting the hearing relating to the Notice of Requirement and thatrequiring the applicant to proceed on notice would cause undue delay and prejudice.[4] Accompanying the application was a draft statement of claim which has notyet been filed, an affidavit in support of Leslie William Fugle dated 30 April 2020, amemorandum pursuant to High Court Rule 7.23(3) and an undertaking as to damagessigned on behalf of the applicant by L Fugle.Facts[5] The applicant is a property development company with a registered office inPalmerston North.[6] It owns land within the territorial jurisdiction of the PNCC with the record oftitle no. 895646.[7] The title contains two lots, Lot 2 DP484516 and Lot 1102 DP519561.[8] The applicant has applied to the respondent for resource consent in respect ofa subdivision to create six residential lots on Lot 2 DP484516.[9] After the applicant had lodged its resource consent, the respondent, on18 December 2019, issued a Notice of Requirement which sought to create a publicroad over part of the applicant's land in respect of which it had applied for a resourceconsent to subdivide.[10] The applicant says that the notice was invalid because there was an error in thedescription of the legal title to its land and that the notice was not served at theregistered office of the applicant.[11] The applicant acknowledges receiving a copy of the Notice of Requirement onor about 30 January 2020 via its solicitors.[12] The applicant further contends that no copy of the Notice of Requirement wasserved on the holder of the registered first mortgage over the land.[13] The applicant's resource consent application has been heard and a decision isawaited. The applicant participated in that hearing and sought to have the issue of thevalidity of the Notice of Requirement determined as part of the subdivision resourceconsent process. The consent hearing panel declined that request on the basis that itwas effectively a "collateral challenge" which should properly be determined by theIndependent Hearings Commissioner (IHC) that had been appointed for the purposeof determining the Notice of Requirement itself.[14] The applicant also sought the IHC appointed by the respondent to consider theNotice of Requirement to rule on the validity of the notice.[15] On 17 April 2020, the IHC declined to do that. The IHC, in the minute of17 April 2020, indicated that the substantive hearing was likely to be held in lateMay 2020.[16] The applicant has not taken any steps to judicially review the decision of theIHC.[17] The applicant has asserted that the declining of jurisdiction by the IHC has"effectively left (the applicant) with no recourse, other than to pursue urgent reliefin the High Court."[18] In respect of the urgency said to justify the without notice application, theapplicant has claimed:while all prejudice which may flow from the purported confirmation of theNOR, will continue to be furthered via the panel hearing process establishedby PNCC, any potential recourse/means of obviating that prejudice at panellevel is now lost to the plaintiff.The law on without notice interim injunction applications[19] Rule 7.53 of the High Court Rules 2016 (HCR) sets out the requirements foran interlocutory injunction seeking interim relief. It confirms that an application foran interlocutory injunction can be made before or after the commencement of thehearing of a proceeding but that an application for an interlocutory injunction madebefore the commencement of a proceeding should not be made except in case ofurgency.[20] HCR 7.54 requires an applicant for an interim injunction to file a signedundertaking that they will comply with any order for the payment of damages tocompensate the other party for any damage sustained as a result of the issue of aninjunction.[21] Pursuant to HCR 7.23, any interlocutory application that is without notice mustuse Form G32 of the High Court Rules 2016 which requires the grounds on whicheach order is sought to be set out in an accompanying memorandum.[22] HCR 7.23 also sets out the requirements as to when an interlocutoryapplication without notice can be made. This includes the ground that "requiring theapplicant to proceed on notice would cause undue delay or prejudice to the applicant".[23] HCR 7.23(3) also requires that a memorandum must be filed with theinterlocutory application and that this memorandum must include the background tothe proceeding, grounds on which each order is sought, an explanation for thosegrounds and relevant information for the application known by the applicant. Theapplicant has filed such a memorandum.[24] Counsel are required to be especially mindful of their obligations in giving thecertificate required by HCR 7.23 as following Sealink Ltd v Tranzpacific ContainersServices Ltd,1 the Judge is entitled to rely on counsel's memorandum as certified inaccordance with the rules.[25] In relation to the specific requirement of urgency, the Court of Appeal hasrecently provided some direction on how urgent interlocutory applications for interimrelief under HCR 7.23 should be approached in the case of Commerce Commission vViagogo AG:21 Sealink Ltd v Tranzpacific Containers Services Ltd (1982) 1 PRNZ 431.2 Commerce Commission v Viagogo AG [2019] NZCA 472 at [29] and [90].[29] It is commonplace for interim relief to be granted against a defendantpresent in New Zealand, under the High Court Rules and the Court's inherentjurisdiction, before the proceedings have been served on the defendant. Thisis appropriate where the purpose of the order would be undermined by servingthe proceedings before the orders are made, or in cases where the interim reliefis so urgent that it is not possible to formally serve the defendant beforeseeking that relief.[90] An application for interim relief should be made without notice to thedefendant only where that is essential, either because giving advance noticewill defeat the purpose of the order sought, or because the application is sourgent that it is not feasible to give notice. Applications in the second categoryshould be rare, and every attempt should be made to provide such notice aspossible – even if it is only a telephone call or text or email – to alert thedefendant to what is happening and enable them to participate on a Pickwickbasis.Analysis[26] The minute of the IHC who is to hear the Notice of Requirement, dated17 April 2020, indicates that the hearing itself it not likely to occur until the end ofApril. The Court has no information as to how long the hearing itself might take, orhow long it might be before any decision is released. However, based on the Court'sknowledge of appeals relating to such matters, an instant decision by the IHC at theend of the hearing is most unlikely.[27] Accordingly, it does not appear that there is any imminent risk to the applicantthat would require depriving the respondent of notice of this application.[28] The applicant's claim that unless a without notice injunction is issued, it willbe left with no basis to challenge the notification and content failings alleged in respectof the Notice of Requirement, is significantly overstated. The applicant could havemoved to judicially review the decision in the IHC's minute of 17 April 2020 but hasnot done so. The applicant will also have a right of appeal against any final decision.[29] No right possessed by the applicant will be defeated should the interiminjunction application be required to proceed on notice.[30] No attempt has been made by the applicant to alert the respondent on aPickwick basis of this application.[31] The applicant has not made out any undue delay or prejudice that would occurif a without notice injunction is not issued.[32] Accordingly, I decline the application to proceed on a without notice basis.[33] I direct that the applicant promptly serve on the respondent a copy of alldocuments filed in support of the application and a copy of this decision on therespondent.[34] I abridge the time for the filing of a notice of opposition and any supportingaffidavits to five working days from the date of service.[35] I direct the Registrar to allocate a half-day fixture to hear the interim injunctionapplication at the earliest available date but not to be earlier than five working daysafter service on the respondent of the proceedings.Churchman JSolicitors:Dewhirst Law, Palmerston North for Applicant