Mackintosh v Thomas [2015] NZHC 823 (23 April 2015)

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BETWEEN	J B MACKINTOSH AND M C HALL First Plaintiffs and Counterclaim Defendants
AND	M W REED Second Plaintiff
AND	S T REED Third Plaintiff
AND	P D THOMAS First Defendant and Counterclaimant
AND	E M MARR Second Defendant
AND	A M SYME Third Defendant

Hearing:	15 April 2015
Appearances:	G M Brodie for First Plaintiffs and Counterclaim Defendants JWA Johnson and H Shaw for Second and Third Plaintiffs NRW Davidson QC and S Mann for First Defendant and Counterclaimant K Clay for Second Defendant No appearance for Third Defendant S H Marsden for Thomas Grandchildren
_Judgment:	_{23 April 2015}

[1] When Norman Dean Thomas (Norman) died, he did not leave his affairs in order. Two years before his death, he fell out with his son, Philip Dean Thomas (Philip) with whom he had been farming in partnership for 35 years. In April 2012,

_{Norman initiated proceedings seeking a declaration that the partnership
between him}

and Philip was dissolved as well as orders dividing the partnership assets. Shortly afterwards, Norman died and Philip counterclaimed asserting that Norman’s interest in the partnership property should be transferred to him.¹

[2] To further complicate matters, two years before Norman’s death, he allowed two of his grandsons, Mark Reed (Mark) and Simon Reed (Simon),²to take occupation of certain properties which had been partnership properties. Simon has been in occupation of two farms, known as Chesmars and Cridges, since 2010. Mark has been in occupation of two other farms, known as Yaldhurst and Halkett, since 2010. They, in turn, have lodged claims asserting that, either on the basis of promissory estoppel or under the Law Reform (Testamentary Promises) Act 1949, Simon is entitled to ownership of the Chesmars farm and to ownership of Norman’s

half share of the Cridges farm and a 10 year lease of the farm plus an option to purchase the other half share, and Mark is entitled to a 10 year lease of the Halkett farm plus ownership of an area of the Yaldhurst farm. They also claim to be entitled to ownership of various farm machinery which Norman allowed them to use on those farm properties.

[3] The two streams of litigation have been consolidated, and other family members have joined, with the other grandchildren making claims under the Family Protection Act 1955. With an estate worth approximately $20 million, a lack of accurate record keeping as to what assets were held by which particular entity, and some preliminary issues to dispose of such as replacing the trustees, it took some time for the case to be ready for hearing. However, a hearing was eventually scheduled for 27 May 2014. That hearing was vacated because, on 28 May 2014, the parties advised the Court they had reached an agreement in principle to settle the various claims.

[4] Regrettably, over the next few months, that agreement foundered and the parties have reverted to the Court to have their claims determined. The new hearing

_{is scheduled to commence on 15 February 2016, although a number of the
parties}

¹Philip’s claim being founded on a breach of an agreement, the principles of promisory estoppel, a breach of promises under the Law Reform (Testamentary Promises) Act 1949, and a breach of his moral duty under the Family Protection Act 1955.

have sought to defer the fixture to a date on or after 29 March 2016, to avoid a clash with the critical harvesting season in late summer.

[5] In the meantime, on 26 February 2015, Philip, as half owner of the Cridges and Halkett properties, served notice on Mark and Simon requiring them to vacate those properties by 7 March 2015. Mark and Simon have responded by filing this application for interim injunction.

[6] Mark has sought to remain in possession of the Halkett property and of the farm machinery in his possession and to restrain Philip from entering Halkett pending further order of the Court.

[7] Simon has sought an order allowing him to remain in possession of Cridges and of the farm machinery in his possession and to restrain Philip from entering Cridges pending further order of the Court.

[8] Mark has been working alongside his grandfather Norman since he left school in 1992.³Norman allowed Mark to operate a company, Hannor Farm Limited, from the Yaldhurst property located near the Christchurch International Airport. The other property which Norman allowed Mark to occupy was the Halkett property which at Norman’s death was owned by Norman and Philip, as tenants in common in equal shares.

10 year period after the former’s death of the remaining portion of the Yaldhurst and of the Halkett property, along with machinery owned and introduced by Norman for the farming operations at Yaldhurst and the Halkett property. Mark says he has been

_{in possession of Halkett since 2010, there is a serious question to be
tried as to}

whether the lease promised by his grandfather, Norman, as co-owner, should be recognised, and the balance of convenience favours allowing him to remain in possession until his claim to that entitlement is determined.

[10] Mark maintains that the status quo should be protected in the interim as he has a legitimate claim and the balance of convenience favours leaving him there until that claim is resolved.

[11] His position on paying rent was the same as that discussed for Simon below. Both he and Simon have offered to pay insurance and rates on the properties they occupy and say it is the trustees’ oversight which has meant these expenses have been paid by Philip and not them.

[12] Simon’s position is similar to Mark’s, although he claims more than simply the right to lease the relevant farm, Cridges. He says he was promised Norman’s half share of the Cridges property and a lease (presumably of the remaining half) of Cridges for up to 10 years as well as an order allowing him the option to purchase the remaining half of Cridges farm.⁴

[13] Simon too, worked alongside Norman during his school holidays. After he left school, he worked for three years on a farm in Methven before beginning his own contract spraying business, Riverfields Sprayers Limited (RSL) in 2003. Since June 2006, RSL was permitted to operate out of a yard at the farm at Cridges. He, too, says he has undertaken extensive work and/or provided extensive services to Norman on Cridges and other farm properties on the basis of the promises set out above.

[14] Simon also says he was promised certain farm equipment and machinery and was allowed to use it and on the strength of that, he did not purchase his own. He

_{also says that the business decisions RSL made were influenced by the
promise of}

⁴These alleged promises appear to have been made on the assumption Norman would acquire the other half share in Cridges in the distribution of the partnership assets, but that did not occur before Norman’s death.

acquiring the farm and the machinery from his grandfather and that RSL carried out considerable unpaid work for his grandparents on the strength of the promises.

[15] He says the balance of convenience favours the status quo being maintained until the litigation is resolved, one way or the other. Although his initial position was that he should not pay rent in the interim as proposed by the trustees, during the hearing he acknowledged that an appropriate rental should be paid, but equally Philip should be paying rent on the estate properties he has possession of. Simon did not accept the rentals for the properties which were assessed by John Ryan, the valuer for the trustees. He suggested that the question of the quantum of any rental payable should be resolved in a further dispute resolution process.

[16] Philip’s position is more fully discussed in the substantive part of the decision below. However, in summary, he strongly resists the application because he already owns a half interest in the properties and has an arguable claim to the estate’s interest in the properties. That automatically gives him a right, not merely a claim, to occupation of the properties.

[17] He says Mark and Simon have not paid rent or outgoings on the properties and he has been held out of farming these properties for five years now. His failure to take steps to exercise possession of the properties to date should not count against him. He has been pragmatic but cannot allow this situation to go on indefinitely. Notwithstanding the position that the Court generally favours the status quo, he says Mark and Simon will not suffer irreparable harm if they are required to vacate and the balance of convenience strongly favours him given his actual ownership of a half interest and the financial detriment to him and the estate if the current situation is permitted to continue.

[18] The trustees filed a document in opposition to the interim injunction application. However, Mr Brodie was at pains to emphasise in his submissions that the trustees sought to be neutral and even handed. Their position was simply that if

Mark and Simon were to remain in occupation, they should pay a fair rental to the estate and to Philip, albeit on a “without prejudice” basis. This means, in Simon’s case, if the Court holds he is entitled to half ownership of the property and that should have been the position provided for in the will, then any rental paid to the estate would be reimbursed.

[19] However, given the trustees’ duty to ensure that the estate assets are properly managed and invested while the disputes between the various claimants are resolved, they say the only prudent thing they could do is seek that a fair market rental is paid on the properties. To that end, they obtained rental advice from J Ryan Valuation based on renting the property for a year at the time (they being unable to provide a longer lease in the circumstances of the litigation). As a consequence, they consider that Simon should be paying the estate $24,500 per year for the use of Cridges and

[20] The trustees were conscious that other beneficiaries are aggrieved that Simon and Mark are occupying these properties at no rent. The trustees are also aware that Philip is prepared to take over the farms and share the farming income with the estate. However, they do not wish to take on the liability of being a partner in a farming operation and prefer that whoever occupies the farms conducts any farming operation in that person’s name, as a sole trader, and pay rent to the trustees for the estate properties which are occupied.

[21] The trustees also seek rent from other family members for their occupation of estate properties, but accept that was not a matter for me to determine in the scope of this interim injunction hearing.

[22] Eleanor Marr is one of Norman’s daughters and is a beneficiary under Norman’s will. Her children are also claimants under the Family Protection Act. Her concern is that, by not allowing Philip to take over these properties, which he claims he can farm and generate considerably more profit from than the rental which

would be paid, the value of the estate is decreased and, accordingly, so is the value of her inheritance. She wants to see income derived from Halkett and Cridges and is concerned that, without that income, the trustees may have to sell other estate assets to meet expenses.

[23] In considering the balance of convenience, she says it is the estate which has to be protected and this is best achieved by allowing Philip to take over these two properties, to farm them and account to the trustees for the estate’s share of that income.

[24] Alison Syme, the mother of Mark and Simon and one of Norman’s two daughters, did not take an active role in this proceeding, but did provide an affidavit which supported her sons’ position. She was concerned that it would be inequitable for her sons to be required to pay rental and other outgoings on the properties they occupied when other family members were not paying rent, or accounting for income, on the other estate properties that were occupied.

[25] Ms Marsden appeared for the Thomas grandchildren, and essentially endorsed the position of Philip and explained that her clients’ claim sat “below” Philip’s claim. Her primary concern was that if Simon and Mark’s claims were unsuccessful, but they had been allowed to stay in occupation at no or nominal rental, Philip will have lost the ability to “build wealth” for his family from these properties over the period he was kept out of possession.

[26] The principles that apply to an interlocutory application for an interim injunction are clear: ⁶

[27] No party actively disputed that Simon has an arguable case to say he is entitled to Norman’s half share of Cridges.⁷

[28] Simon’s affidavit evidence supports his assertion that he has an arguable right to possession flowing from his claim to be entitled to receive Norman’s half interest in the Cridges farm. However, Philip rejects any suggestion that Simon has an arguable claim to rights in Philip’s half share of the property. How his rights of possession and occupation are to be exercised when the other co-owner, Philip, also asserts rights to possession and occupation is a matter for resolution down the track. It follows that I am satisfied that Simon has a serious issue to be tried in respect of his claim to be entitled to remain in occupation of the land.

[29] In respect of Mark’s primary claim that he was promised a lease of the Halkett property for 10 years, Philip resists the suggestion that such a promise is enforceable, and certainly not against the rights of himself, as co-owner.

[30] I acknowledge that Mark’s position, in relation to the Halkett property is more problematic. He is not claiming that Norman’s half interest in the Halkett property was promised to him. Instead he is claiming that Norman promised to allow him to lease the whole of the Halkett property for 10 years. He has located his company’s employees in the house on the Halkett property, and undertaken various works on the property, including sowing crops on it, in reliance on such a lease being forthcoming.

[31] Simon and Mark argue that the rights of a co-owner such as Norman to include the right to let other persons into possession as his tenants, citing Burfitt v Johansen and Ors,⁸and U-Needa Laundry Ltd v Hill.⁹The rights they respectively

[32] While that may be so, I consider Simon and Mark cannot tenably argue that the trustees are obligated to fulfil a promise of a lease of Philip’s interest in the land. While Norman endeavoured to obtain Philip’s half share in these two properties during his lifetime, that was successfully resisted by Philip. Indeed, Philip also caveated his father’s interest in these properties claiming to be beneficially interested in them either as a consequence of the partnership agreement or by virtue of an equitable estoppel.

[33] That leaves the interim injunction application to be determined in the unusual circumstances where both parties claim to have an entitlement to rights to occupy and use the land, either as co-owner, or on the basis of rights derived from the co-owner, but where they cannot, in my view, argue that the other co-owner, Philip, has no right to possession of the land. As was said in the Australian text, Land Law:¹⁰

... one co-owner may grant a lease of his or her interest, since the lease binds only that co-owners interest in the land and leaves untouched the rights of the other owners to (shed) possession of the land. However, because they create practical inconveniences, such leases are rare and Courts may be reluctant to specifically enforce them.

[34] While Mark and Simon assert that Norman claimed to have taken over Philip’s interests in Cridges and Halkett in order to reduce the difference in the current account imbalances between himself and Philip, there is no specific claim in the trustees’ claim for dissolution of the partnership assets, for the Cridges and Halkett properties to be transferred to the estate, to effect what Norman endeavoured to do but did not achieve in his lifetime.

[35] Accordingly, I am satisfied that Philip remains the legal owner of an undivided one half share in the property, and so, in weighing the balance of convenience issues discussed below, I must take that into account with its associated rights of possession. I am also satisfied that any claim the grandsons have to a lease of the properties can only be of Norman’s interest and cannot ignore Philip’s rights

¹⁰Peter Butt Land Law (3rd ed, Law Book Company, Australia, 1996) at page 238.

[36] Having established that there is at least a serious question to be tried as to Simon and Mark’s rights to be in possession of the property, either as co-owner or through rights derived from a co-owner, I must turn to determine where the balance of convenience lies. This requires a decision as to whether the granting of an injunction, or its refusal, is the course which, after the action itself has been tried and the issues between the parties determined, would best allow the adjustment of the

[37] An important consideration is the adequacy of damages that the defendant is able to pay as compensation for the loss the plaintiff might suffer from the challenged activities.¹²Other considerations which the Courts have taken into account when assessing the balance of convenience, and in exercising its discretion, include:

(a) any prejudice to innocent third parties that may militate against the grant;¹³

(b) preserving the status quo when other factors appear to be evenly balanced;¹⁴and

(c) the conduct of the parties, given that the jurisdiction to grant an interlocutory injunction is equitable and governed by equitable principles.

[38] In the present case, Mark argues that he has occupied Halkett for five years, that he has said to the trustees he will pay rates and insurance (and it is through no fault of his that that has not happened), and that he is now prepared to pay rental (but on the basis that other parties occupying estate property also pay rental). He says his

_{business is located on Halkett and his company has had employees in the
Halkett}

¹¹_{Congoleum Corporation v Poly-Flor Products (NZ) Ltd
[1979] NZCA 25; [1979] 2 NZLR 560 (CA) at 571.}

¹³Chatham Islands Fisherman’s Cooperative Co Ltd v Chatham Islands Packaging Co Ltd (1988)

house since 2010, something which has been provided for in their employment agreements. He has planted grain feed on the property and is irrigating that crop.

[39] If he is removed, he says he will lose the income stream he has while placing Philip in an even larger farming operation. Both he and Simon say this would potentially adversely impact on the conduct of the litigation, personally by creating an imbalance in income streams to fund the litigation.

[40] Similarly, Simon’s position is that if he was required to vacate the property it would cause a significant disruption to him and his business. In particular, his agricultural contracting business has been located in the yard on Cridges farm since

2006. He too says he has planted crops in the ground on the property and would be constrained from harvesting these if he was evicted. He also has approximately

650 lambs grazing the property pursuant to a contract with a neighbouring farmer. That farmer would be adversely affected as he has no other available source of grazing and these arrangements between the farmer and him have been long standing. Both he and the farmer have been investing in the grazing programme on the property since his grandfather’s death in May 2012, and this continues an arrangement which was originally set up between the farmer and Norman.

[41] Like Mark, he has been willing to meet insurance and rates and does not understand why the trustees have not sought payment of these from him. He also, reluctantly, accepts that rental should be paid, but like Mark, says the trustees should be even-handed in this and require rental from the other occupants of the estate properties.

[42] Both Mark and Simon seek to retain the machinery which Norman allowed them to use, and which they are currently in possession of, on similar grounds. Continuing the position which existed at Norman’s death preserves the status quo and achieves fairness with other parties who also have possession of estate property. Relinquishing it would have financial consequences for them.

[43] In short, Mark and Simon argue that this is a case where it is appropriate to retain the status quo as they will otherwise be adversely affected (by having to

relocate their businesses), they have invested in the property they occupy and the benefits of which will be denied to them if they vacate it, and where there are legitimate commitments to third parties, they will also be adversely affected if Mark and Simon are required to vacate the properties.

[44] Philip, in contrast, begins with the fact that, as a matter of law, he is entitled to possession of these lands and that feeds into both whether there is a serious question to be tried, as already discussed, and to the question of balance of convenience. He therefore places his undisputed rights to the land in competition with Simon and Mark’s arguable rights.

[45] While acknowledging that Mark and Simon have been in possession of these properties for the last five years, he makes it clear that at no stage has that been with his blessing. It commenced because of unilateral decisions by Norman during his lifetime and continued following his death, while Simon and his mother were two of the trustees. New trustees were only appointed in late 2013 and it was only at their behest that he allowed things to remain on foot given the fixture was scheduled for

27 May 2014. That was also in the expectation that rent would be paid to the estate and to Philip, but that has not occurred.

[46] When the matter was subject to the provisional settlement, that settlement would have resolved all issues of occupancy. However, now that the settlement has fallen apart, Philip is facing another year (or potentially more if appeals are lodged) where he has no recompense for Mark and Simon’s use of his half share of Cridges and Halkett.

[47] Importantly, Philip says that as these are the irrigated blocks of farm land, they have the greatest income earning potential of any of the partnership farms. He also asserts in evidence that he could make significantly more from farming this land than he would receive from tenants.

[48] For completeness, there were also various accusations made by Philip that Mark and Simon had not dutifully managed the properties compared with how Philip would have managed them. However, there were strident denials from the grandsons

as well as counter accusations about Philip’s former management of them. In the end, I was not prepared to determine on the affidavit evidence that either side was disentitled to occupation because of these alleged defaults.

How should consideration of where the balance of convenience lies be resolved here?

[49] It is clear that Mark and Simon have done many things in reliance on an expectation they would have continued rights to occupy the property. They have also extended rights to third parties who would be unfairly adversely affected if they were required to vacate the property. I accept that some of those concerns could be managed by an appropriate set of conditions such as those proposed by Philip for the removal of crops and grain from the properties.¹⁵However, it is not as clear how the detriment to Mark and Simon’s businesses, and to the third parties with whom they have contractual obligations, can be properly addressed. The suggestions at

paragraph 90 of Philip’s affidavit as to how the harm to third parties can be addressed are not, in my view, sufficient.

[50] The next matter which Philip says tips the scales in his favour, is his ability to farm the properties and account to the trustees for the income earned off the estate share of the farm property. There was disputed evidence as to what that expectation of income would be and, in these circumstances, I do not consider that I can accept at face value Philip’s estimates of his potential earnings from the properties as realistic.

[51] Furthermore, the proposal that he accounts to trustees for half the income earned off the properties, while supported by some of the other parties in Philip’s camp, was not embraced by the trustees. They see by adopting that course of action that they are actively engaging in farming the properties and incurring commensurate liability. As prudent trustees, they are content to receive a market rental from the properties, from whoever is in occupation, and ring fence the responsibility for undertaking the farming operation to the tenant. Mr Davidson QC, for Philip confirmed that Philip would, if the trustees prefer rental, pay whatever the trustees

_{considered was a fair rental which was not the position taken by Mark
and Simon.}

[52] Finally in terms of the loss of income to Philip, I consider that is partly met if rent is payable and is also addressed by his ability to earn income off the balance of the estate properties.

(a) the desirability of maintaining the status quo, where third party rights may be affected, and where the party held out of occupation does not suffer irreparable harm which cannot be compensated for by damages; and

(b) the needs of the other parties to the litigation, including the trustees, to earn a fair income from properties so occupied, particularly when that is being offered by the party competing for occupation.

[54] There is, at least a prospect, that Mark and Simon will be entitled to continue to occupy these farms at the conclusion of the litigation (although they will still need to address how that is to be exercised in light of the rights of their co-owner to occupation, and may require resolution under s 339 of the Property Law Act 2007). If they are required to vacate the properties and re-establish their businesses elsewhere, including re-tenanting their employees, that may effectively determine their claim to possession because the practical impediments to them terminating those arrangements and then relocating back if they are successful, may be too great. On the other hand, if Philip’s claims prevail, that would simply involve a single move by him to take over ownership of those farms at that point. That is a material aspect of the considerations of balance of convenience.

[55] Similarly, in terms of the grandson’s claims to continue the use of the farm machinery and equipment in their possession, it is clear that Philip’s farming operation has continued for five years without that equipment, whereas Mark and Simon have made various decisions about equipment purchases, based on an expectation they can continue to use that equipment which Norman gave them permission to use. If they are required to relinquish it now, then they would need to

replace that equipment and machinery, which would effectively thwart the benefit of the relief they seek in this regard in their claims.

[56] Furthermore, I take into account that Philip has the use of the balance of all the other estate properties, which other beneficiaries are entitled to under the will. While those are not irrigated properties, at least to some extent the detriment he is suffering from being held out of Halkett and Cridges is made up by the ability to farm, and earn income from, the entirety of the balance of the partnership properties.

[57] However, all the above considerations would still not weigh in Simon and Mark’s favour, if they were not obliged to pay rent. In Mark’s case, of course, he is only claiming an entitlement to a lease of the property, so in any event he would be expected to pay rent. Simon’s case is a little different in that he is claiming ownership of a half interest in the property, and it is unclear on what grounds he could obtain a lease of the balance. However, in fairness to the competing interests of the trustees and of the other beneficiaries of, and claimants to, the estate, a market rental should be paid for the occupation of Halkett and Cridges.

[58] The dispute in this regard is what rental should be paid. The trustees have assessed rentals and, at the hearing, tentatively suggested that the actual amount should be the subject of a further determination with the grandsons required to pay

80 per cent of the assessed rental in the interim. Philip, on the other hand, says that the rentals proposed are too low and he considers that a higher rental should be paid.

[59] In the end, I am not prepared to open yet another tranche of litigation between these parties. The J Ryan Valuation assessment has been obtained by the trustees in the course of their duties and I am not persuaded its assessment of rental is so flawed or unreasonable that it should not form the basis for an interim occupation rental. In any event, any payment of rent is proposed by the trustees to be without prejudice to the claims the parties have before the Court. As they have said in various reports, “any rent or occupational payment paid on a particular property could be unwound if that party succeeds in claiming the property in question”.

[60] I therefore consider that the application for interim injunction should only be granted on terms which require Simon and Mark to:

(b) from 7 March 2015 onwards (which is the date they were otherwise required to vacate the properties) that they pay rent in accordance with the J Ryan Valuation rental assessment for a one year rate until further order of the Court;

(c) that such rental is to be paid half to the estate as one half owner of the property and half to Philip as the other co-owner; and

(d) the payment of rental is made without prejudice to their rights to claim a refund of rental from the recipient if the Court finds they were entitled to ownership of the interest in the property for which rental has been paid.

[61] If Mark and Simon are not prepared to pay rental, then they must vacate the properties by 30 June 2015. Should they require any additional orders to protect the interests of third parties, or to have access to the property to retrieve assets such as grains stored there beyond that date, I will reserve leave for them to do so.

[62] For the same reasons as I have chosen to protect the status quo in terms of occupation of the farms, as long as rental as assessed by the trustees is paid, I also am prepared to grant possession of all machinery in Simon and Mark’s possession, pending further order of the Court.

[63] While throughout I have recognised the rights of Philip, as co-owner, to possession of the farms, in all the circumstances and given the history of this matter, I accept that he should be restrained from entering Halkett and Cridges pending further order of the Court while Simon and Mark continue to occupy those farms. His right to possession of the land is recognised in the interim by accounting to him for rental of his interest in the properties.

(a) the second plaintiff is to remain in possession of the property known as Halkett farm and all machinery in the second plaintiff’s possession and the first defendant is to be restrained from entering Halkett pending further order of the Court on the basis that he occupy the land on the terms set out in the deed of lease annexed as exhibit N to the affidavit of Philip Dean Thomas sworn 23 March 2015, but excluding the provisions as to term of lease and as modified by the email dated

(b) the third plaintiff remain in possession of the property known as Cridges farm and all machinery in the third plaintiff’s possession and the first defendant be restrained from entering Cridges pending further order of the Court on the basis that he occupy the land on the terms set out in the deed of lease annexed as exhibit O to the affidavit of Philip Dean Thomas sworn 23 March 2015, but excluding the provision as to term of the lease and as modified by the email dated 3 January 2014 from the first and second defendants to the trustees; and

(c) if the second and third plaintiffs elect not to remain in possession on those terms, then they must vacate the properties by 30 June 2015. If they require any additional order to protect the interests of affected third parties or to enter the property beyond that date, I reserve leave to them to seek such orders by:

(i) filing and serving a memorandum setting out the further orders sought by 15 May 2015;

(ii) any other party filing and serving any memorandum in response by 29 May 2015; and

(iii) unless I consider I need to hear from the parties, I will determine the issue on the papers.

[65] I reserve the issue of costs. At this stage it is not clear that there has been a “successful” party. I am only prepared to grant the interim injunction, on terms which were not wholly supported by the second and third plaintiffs.

[66] At present, I am inclined to let costs lie where they fall. If any party seeks costs, it is appropriate that that be considered in the context of the eventual outcome of the proceedings.

High Court of New Zealand Decisions

Mackintosh v Thomas [2015] NZHC 823 (23 April 2015)