Barfoot v O'Meara [2018] NZHC 720 (19 April 2018)

Last Updated: 21 May 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000686 [2018] NZHC 720

UNDER	the Judicial Review Procedure Act 2016
IN THE MATTER OF	the Tamaki Estuary Protection Society Inc
BETWEEN	CHRISTOPHER BARFOOT, BETHANY MEGAN EVANS, JAMES REGINALD SINCLAIR, JULIE CHAMBERS, CHARLES WORTH, OLIVER HOFFMAN, DORTHE SIGGAARD, SIU MAN LORA YOUNG, BARBARA SHAW as committee members of TAMAKI ESTUARY PROTECTION SOCIETY Plaintiffs/Applicants
AND	PATRICK O’MEARA First Defendant/First Respondent DENNIS THOMPSON Second Defendant/Second Respondent ASB BANK LIMITED Third Respondent

Hearing:	(On the papers)
Judgment:	19 April 2018

JUDGMENT OF VENNING J

ON WITHOUT NOTICE FOR INTERIM RELIEF

This judgment was delivered by me on 19 April 2018 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Tompkins Wake, Auckland Counsel: R S Pidgeon, Auckland

BARFOOT & ORS v O’MEARA [2018] NZHC 720 [18 April 2018]

[1] The Registrar has referred this file to me as duty Judge.

[2] The plaintiffs/applicants bring a without notice application for interim orders and ancillary orders.

[3] The proceeding involves a dispute between the members of the Tamaki Estuary Protection Society Incorporated (TEPS). The plaintiffs consider that they have the mandate to act on behalf of TEPS. The first and second defendants are two of the “old” committee members who take a different view. Unfortunately the relationship between the parties has broken down. The affairs and interests of the TEPS are at risk.

[4] With the assistance of counsel, Mr Pidgeon, the plaintiffs have filed an application for judicial review seeking various orders relating to the management and future control of TEPS.

[5] In the without notice application for interim orders the plaintiffs seek:

(a) orders permitting substituted service on the second defendant;

(b) directions as to service or joinder;

(c) mandatory orders to compel the defendants to deliver up a full and complete list of members of TEPS and all records since 1 January 2015;

(d) mandatory orders to direct the ASB Bank Limited (the Bank) to prevent all actions by any party which have the effect of depleting the account balances;

(e) a mandatory injunction that a special general meeting of TEPS be convened as soon as possible;

(f) a prohibitory injunction preventing the defendants from representing to the ASB Bank Limited, the Charities Commission or any third party that they are or were members of the executive of TEPS since 29 October 2017;

(g) leave to seek further orders.
[6] The substantive application and without notice applications are supported by affidavits of Christopher Barfoot, Bethany Evans, Danyon Chong and Julie Chambers.

[7] It appears from counsel’s memorandum that the application and accompanying papers have been served on a Pickwick basis and have actually been served on the second defendant at least by way of email.

[8] Although this is an application for interim orders pursuant to the Judicial Review Procedure Act 2016, and the consideration for interim injunction do not apply directly, I accept there is a serious question to be resolved. There is an impasse in the management and control of TEPS. TEPS appears to have a substantial sum of money with the Bank. That money should be protected in the interim.

[9] I note from email correspondence presented to the Court that the Bank is aware of the proposed application and will abide the decision of the Court.

[10] However, a number of the orders sought on the without notice application should not be made on a without notice or even on a Pickwick basis. The defendants are entitled to take proper advice and respond to the application.

[11] On the basis of the affidavit of Mr Chong I am satisfied that the documents sent by email to the second defendant’s email address have been received.

[12] Further directions as to joinder and the extent of the members of the “old” Committee to be joined should be dealt with when the first two defendants are before the Court. Although the application refers to the list of “old” members being in counsel’s memorandum, that was not attached.

[13] As noted, save for the order in relation to the bank account, the other mandatory orders sought are not appropriate at the present stage.

Result/orders

[14] (a) The notice of proceeding, statement of claim, without notice application for interim orders and orders ancillary to same, together
with the affidavits of Christopher Barfoot, Julie Chambers, and memorandum of counsel, all dated 15 April 2018, sent to the email
[e-mail] are treated as having been served on the second defendant Mr Thompson on 16 April 2018.

(b) Pending further order of the Court or the second defendant filing and serving a formal address for service [e-mail] is to be the address for service for Mr Thompson.

(c) The Bank is to freeze all bank accounts held by it in the name of Tamaki Estuary Protection Society Incorporated, (TEPS) pending further order of the Court.

(d) The Bank is to provide the solicitor for the plaintiffs with all bank statements for the TEPS from 1 April 2017 (in electronic form) within 10 days of being served with a copy of this order. The reasonable costs of supplying the statements will be borne by the plaintiffs in the first instance, but otherwise are to be costs in the proceeding.

[15] All other applications including further directions as to service are adjourned for further consideration once the defendants have been given an opportunity to take advice and consider their position.

[16] The proceeding is adjourned to the duty Judge list on Thursday, 26 April 2018 at 10.00 am. The plaintiffs are to forthwith serve the first defendant with these proceedings and are also to serve a copy of this judgment on Mr Thompson at the email address [e-mail].

[17] Costs reserved.



Venning J