WEIGH NEW ZEALAND LTD V EASTLAND PORT LTD HC GIS CIV-2008-416-55

WEIGH NEW ZEALAND LTD V EASTLAND PORT LTD HC GIS CIV-2008-416-55 26 March 2008IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY CIV-2008-416-55BETWEEN WEIGH NEW ZEALAND LIMITED Plaintiff AND EASTLAND PORT LIMITED Defendant Hearing: 26 March 2008 (Heard at AUCKLAND) Appearances: Mr N W Woods for plaintiff Mr M D Arthur and Mr J Graham for defendant Judgment: 26 March 2008(ORAL) JUDGMENT OF LANG J [on application for interim injunction]Solicitors:Rice Craig, Auckland – facsimile 299 6107 Crown Solicitor, Auckland – facsimile 336 7629[1] Weigh New Zealand Ltd operates a weighbridge in the vicinity of the Gisborne Port. That port is currently operated by the defendant, Eastland Port Ltd ("the port company"). [2] The weighbridge has been in existence since approximately 1997. It was installed after Weigh New Zealand (then known as Quilliams Development Ltd) entered into a deed of lease with the then port company under which it agreed to lease land on the Esplanade near the Port for a term of 14 years. That lease contained a right of renewal for a further ten years. [3] In or about February 2008 Weigh New Zealand became aware that the port company had begun taking steps to construct its own weighbridge. It takes the view that the port company is not permitted to do so, and that its actions in building a new weighbridge will derogate from the lease that it has granted to Weigh New Zealand. It also alleges that the construction of the new weighbridge is in breach of the deed of lease, that it means that Weigh New Zealand entered into the lease under the influence of material misrepresentations and that a breach of the Fair Trading Act 1986 has occurred. [4] In this proceeding, which was filed in Gisborne on 19 March 2008, Weigh New Zealand seeks a declaration or permanent injunction to the effect that the defendant shall not install, operate or run any weighbridge on the Port land during the term of the lease and any renewal. Weigh New Zealand served the proceedings on the solicitors acting for the port company at the close of business on Thursday 20 March 2008. The proceeding has been placed before me as Duty Judge in Auckland today because Weigh New Zealand seeks an interim injunction preventing the port company from continuing with the installation of the new weighbridge. [5] I was told from the bar by counsel for the port company that it is likely that construction will not be completed until early May 2008. Weigh New Zealand has concerns that the weighbridge will be able to be completed much earlier than this, and it therefore seeks an interim injunction on an urgent basis.The approach to be adopted[6] I am conscious that the proceeding was served on the solicitors acting for the port company just prior to the Easter break. The port company has therefore had no opportunity at all to respond to the evidence adduced by Weigh New Zealand. It obviously needs to have that opportunity before this Court can realistically consider issues such as whether or not Weigh New Zealand has an arguable case that is sufficient to support an interim injunction. [7] Counsel have now ascertained from the Registrar that a one-day fixture to determine the application for an interim injunction is available during the week commencing 28 April next. Both counsel have accepted that fixture, and I propose to make timetable orders at the conclusion of this judgment to enable the application to be brought to a state of readiness on that date. [8] I consider that the approach that this Court must take in considering the present application, which is for interim orders pending the formal hearing of an application for an interim injunction, is that it should preserve, so far as that is possible, the status quo. This means that it must require the installation of the weighbridge to stop until such time as the application for an interim injunction has been heard. I do not consider that any other approach would be appropriate. [9] In reaching this conclusion I have taken into account the possibility that installation and completion of the weighbridge, whilst being at the port company's risk, may nevertheless also potentially become a factor relevant to the exercise of the Court's discretion when it comes to consider Weigh New Zealand's application. I also bear in mind the submission of Weigh New Zealand to the effect that, if the weighbridge is brought to a stage of completion, those in the relevant industrial community may see the delay in opening the new weighbridge as having been caused by Weigh New Zealand. This, in turn, may cause some degree of resentment to, and resistance against, its commercial enterprises in the Gisborne area. [10] In terms of balance of convenience I have no doubt that the status quo should be maintained. The port company has no desperate need for a new weighbridge. Itseeks to construct it because it sees that it will provide a more efficient weighbridge service to the users of the port. If it ultimately succeeds, the only financial loss that it will suffer will be income that it has lost as a result of the delay in completing the new weighbridge. On the figures presently available, that would appear to be in the order of approximately $10,000 per month. I have no doubt that Weigh New Zealand has sufficient assets to honour its undertaking to meet damages of this order. [11] For these reasons I have concluded that it is appropriate to grant interim injunctive relief at this stage. In doing so I make it plain that the relief is intended to enure only until the substantive hearing on 28 April 2008. Whether or not it continues beyond that date will be a matter entirely within the province of the Judge who hears the substantive application.Orders[12] I now make the following orders: a) Until further order of the Court Eastland Port Limited shall not continue with the installation of the partly constructed weighbridge in the Gisborne Port area. b) Until further order of the Court Eastland Court Limited shall not, directly or indirectly by its agents, employees or otherwise, block, obstruct or impede by the creation of a batter or however, the road named The Esplanade situated adjacent to Gisborne Port or access to and from the land currently leased by Weigh New Zealand. [13] In making the latter order I am conscious of the fact that the roadworks that are being carried out in the vicinity of the Esplanade appear to have been instigated by the Gisborne City Council. It appears unlikely, on the information presently known, that the port company has any ability to prevent the City Council and its contractors from cutting off access to The Esplanade as presently scheduled. This is a matter that Weigh New Zealand will need to consider over the next four weeks. Iam not prepared at this stage to make an order going beyond that which is sought in the application for interim relief.Timetable directions[14] I now direct: a) Documents in opposition to the application for an interim injunction are to be filed and served no later than 8 April 2008. b) Affidavits in reply (if any) are to be filed and served no later than 15 April 2008.Costs[15] Costs at this stage are reserved. Lang J