INSATO FURNITURE LTD & OR v STAR MOVING LTD [2018] NZHC 3

INSATO FURNITURE LTD & OR v STAR MOVING LTD [2018] NZHC 3 [12 January 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-003017[2018] NZHC 3BETWEEN INSATO FURNITURE LIMITEDFirst PlaintiffINSATO FURNITURE TRADING PTYLIMITEDSecond PlaintiffAND STAR MOVING LIMITEDDefendantHearing: 11 January 2018Appearances: J A McMillan and C L P Smith for PlaintiffsP W Michalik for DefendantJudgment: 12 January 2018JUDGMENT OF HINTON JThis judgment was delivered by Justice Hintonon 12 January 2018 at 5.30 pmpursuant to R 11.5 of the High Court RulesRegistrar / Deputy RegistrarDate[1] Insato Furniture Ltd (Insato) is an importer and wholesaler of consumerfurniture.[2] Star Moving Ltd (Star) was a contractor to Insato, arranging for the storage anddelivery of Insato's products to its customers, who include Harvey Norman and HunterFurniture. Star holds a significant amount of Insato's stock in two warehouses, anAuckland warehouse and a Christchurch warehouse. The contract has been cancelled.[3] Insato and a related company apply for a mandatory injunction that Star makeall of the furniture available for Insato's collection immediately.[4] In the alternative, Insato seeks orders under r 7.78 of the High Court Rules.[5] Rule 7.78 enables the Court to make orders for interim payment into court anddelivery up of property where a lien is claimed.[6] In essence, neither party really disputes the application of r 7.78 or thedesirability of Insato's goods being released, with Star being adequately covered forits claimed lien. The terms of the orders that should be made are disputed.[7] In any event, I consider this is clearly a situation where r 7.78 should beapplied.[8] The notice of lien dated 5 December 2017 claims an amount due at that date of$50,680.64 inclusive of GST. However, as Insato pointed out, the accompanyingstatement appears to include a number of amounts that on the face of it are not dueuntil 20 December 2017. These total approximately $13,000. The statement alsorefers to amounts that were allegedly due in September 2014 and April 2016 totallinga further $1,400. These entries seem very strange.[9] In those circumstances there is a very clear question mark over the amount inrespect of which the lien is claimed. Insato says there are significant further issues. Itessentially disputes the right to a lien at all.[10] Mr Michalik, for Star, says that in terms of the Contract and Commercial LawAct 2017 (CCLA) a carrier can claim a lien for freight and "recoverable expenses"which includes all expenses reasonably incurred by the carrier in removing, preservingand storing the goods pending settlement of the carrier's claim.[11] On that basis, Mr Michalik seeks that a total sum of approximately $80,000 bepaid into court under r 7.78 to allow for future costs, whereas Insato has offered to paythe amount of the lien notice. Of that amount Insato does not dispute that $33,932.77is properly due.[12] My reading of r 7.78, the commentary to it, and s 286 of the CCLA wouldsuggest that if there is any amount which I should order be paid into court as aminimum, it is the amount of the actual notice ($50,680). I propose to allow anadditional sum of just under $10,000 to round the payment up to $60,000.[13] Both parties agree that the money should be placed on interest-bearing deposit.[14] There is a remaining issue, which is the date of delivery of the goods. Insatosays it needs to have delivery at the latest by Thursday, 25 January 2018, with the firstdelivery being available in each warehouse by 15 January 2018 at the latest.[15] Mr Michalik is adamant that the goods can only be available for collection inaccordance with the timetable which Star dictates.[16] I have decided to accede to Star's position in this regard, but it will obviouslybe relevant to the ultimate resolution of this case.[17] I now make the following orders in terms of r 7.78, the form of which wascanvassed with counsel yesterday:(a) On or before Tuesday, 16 January 2018, the plaintiffs are to pay $60,000into the High Court at Auckland, to be placed on interest-bearingdeposit;(b) All goods held by the defendant on behalf of the plaintiffs are to bemade available for collection by the plaintiffs and to be collected fromStar's Auckland and Christchurch warehouses on the following basis:(i) Star is to make 100 cubic metres available per week ex theAuckland warehouse and 200 cubic metres per week ex theChristchurch warehouse;(ii) The first collection is to take place on Wednesday, 17 January2018;(iii) All goods must be made available for collection byWednesday, 7 February 2018, this provision to prevail over(i) above;(iv) Insato can nominate the order in which goods are to be madeavailable so that it can prioritise goods required by customersand minimise any loss.(c) Within three working days of all goods being collected from Star, Insatowill request the Court to pay the undisputed sum of $33,932.77 to Star.(d) The remaining balance of $26,067.23 plus any accruing interest will beheld by the Court until the result of the substantive proceeding isknown, or the parties otherwise agree.[18] The question of costs was not addressed and costs are reserved.____________________Hinton J