ROONEY EARTHMOVING LIMITED V BMW CONTRACTING LIMITED AND ORS HC TIM CIV 2009-476-000471 [2009] NZHC 1332 (23 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
TIMARU REGISTRY
                                                                CIV 2009-476-000471



               BETWEEN                    ROONEY EARTHMOVING LIMITED
                                          Plaintiff

   
           AND                        BMW CONTRACTING LIMITED
                                          First Defendant

       
       AND                        KELVIN DOUGLAS MCTAGUE
                                          Second Defendant

           
   AND                        KERRY WAYNE BARTLETT
                                          Third Defendant

               AND
                       CLARENCE HENRY WHITING
                                          Fourth Defendant


Hearing:       23 September
2009 (On Papers)

Judgment:      23 September 2009


                           JUDGMENT OF FOGARTY J



[1]    The plaintiff has
this afternoon filed an interlocutory application without
notice for freezing orders.       The application follows upon a judgment
of the
Employment Court delivered on 24 August last in proceedings CRC21/07, and on
advertised Trade Me sale of first defendant's
assets due to conclude on Saturday,
3 October next, if not earlier.


[2]    The application seeks an order restraining BMW Contracting
and Kerry
Wayne Bartlett (the first and third defendants) from disposing of or deleting or
diminishing the value of certain assets
as appearing in the draft order to be treated as
attached to this judgment, and to be provided to the defendants when providing them
with a copy of this judgment.

ROONEY EARTHMOVING LIMITED V BMW CONTRACTING LIMITED AND ORS HC TIM CIV 2009-
476-000471 23 September
2009

[3]    There is a further application in respect of the current Trade Me auctions for
the sale of three excavators seeking
orders as follows:


       a.      "Requiring the first and third defendants not to conclude any sale of
               assets through
Trade Me or otherwise without leave of the Court on
               terms;


       b.      Should any sale of assets be effected
through Trade me or otherwise
               then the proceeds of sale be retained and not disbursed in any way
               pending
further order of the Court."


[4]    I am satisfied it is appropriate that there be orders made today, to last until
this Court
has an opportunity to hear all the parties.


[5]    Accordingly, an order is made in terms of the attached draft with the addition
of a Clause 14:

       14.     Requiring the first and third defendants not to conclude any sale of
               assets through
Trade Me or otherwise without leave of the Court on
               terms. Should any sale of assets be effected through Trade Me
or
               otherwise then the proceeds of sale be retained and not disbursed in
               any way pending further order
of the Court.

With the qualification that Clause 9 is deleted and in its place is the following Clause
9:

       9.      The freezing
order will continue down to the completion of a
               hearing of the application on Thursday, 1 October, at 10 am before
               Fogarty J. The plaintiff to serve these proceeding, this judgment,
               and this order on the defendants
as soon as possible.

[6]    On Thursday, 1 October, I will call on the plaintiff to argue for the merit of
continuation of the orders
rather than impose on the first and third defendants an
obligation to justify a discharge of the orders.


[7]    I would note that
one of the issues that I will expect to be argued is the extent
of the application of the principle of res judicata including the
doctrine of merger of
causes of action in judgment, as a consequence of the delivery of Employment Court
judgment.    I will need
to be persuaded that there is a serious argument that

notwithstanding the plaintiff having elected to pursue remedies in the Employment
Court, it can now proceed with the causes of action referred to in paragraph 2(e) of
the interlocutory application in the High Court.


[8]     It may be that the interlocutory
application for a freezing order cannot be
heard adequately on notice on 1 October due to counsel not being available and/or
ready
to argue inter-partes. But if so in any event counsel will need to be ready to
argue for a continuation of all or some of these orders
in the meantime, and in
particular in respect of the Trade Me actions which appear to be intended to
terminate on Saturday, 3 October
2009.


[9]     There is leave to apply to all parties for a telephone or chambers conference
on one hour's notice to the other parties
to apply for any variation of these orders, or
for a date of hearing in the alternative to 1 October.




Solicitors:
Meares Williams,
Christchurch, for Plaintiff