An interim injunction against the construction of a residential property belonging to the family of a senior Cabinet Minister, Papali’i Niko Lee Hang, has been lifted by the Supreme Court.

The decision was delivered by Justice Tafaoimalo Leilani Tuala-Warren yesterday.

Business couple Komisi and Sala Lupe Chan Mow had opposed an application to lift the injunction taken out to stop the construction of the two-storey building belonging to the family of the Minister of Works, Transport and Infrastructure.

Lawyer Muriel Lui represented the Minister’s family while Sala Josephine Stowers represented Mr. and Mrs. Chan Mow.

In delivering her decision yesterday, Justice Tafaoimalo encouraged the parties to find a friendlier solution. 

“The parties will most likely be neighbours for the foreseeable future,” Justice Tafaoimalo told the Court. 

“I encourage them to find an amicable solution to their dispute.  The application to set aside the interim injunction dated 24 December 2018 is granted. The interim injunction dated 24 December 2018 is set aside forthwith.” 

In her decision, Justice Tafaoimalo said she is satisfied that the balance of convenience does not favour the continuation of the interim injunction issued against the residential house. 

“The applicant has said in his affidavits that he has suffered significant financial losses and damages due to the length of time his work has been on hold, and it is costly to him as he has contractual obligations to his builders,” the decision reads.

“There is nothing to contradict this claim by the applicant. The affidavits by Sala Lupe Chan Mow are primarily directed towards the supermarket and touch vaguely on ‘further houses’ and ‘pressing impacts’.”

Below is Justice Tafaoimalo’s decision in full: 

RESERVED DECISION OF TUALA –WARREN J ON APPLICATION TO SET ASIDE INTERIM INJUNCTION

Background

1. The parties are adjoining land owners at Vaoala. The Applicant has built a supermarket and was building a residential house on his land when an interim injunction was issued to stop the residential house on 24 December 2018. The residential house was being built behind the supermarket. The Applicant has been granted a development consent by the Planning and Urban Management Agency (‘PUMA’) dated 22 November 2018 to build his residential house. The development consent is valid for 2 years. The Applicant’s completed supermarket is the subject of a pending claim by the Respondents in nuisance.

2. An application to set aside the interim injunction (‘the Application’) which has been issued against the residential house was filed on 7 January 2019 by the Applicant.

The Application

3. The application is brought on the following grounds;

a. The facts upon which the interim injunction is based are inaccurate and therefore the interim injunction was unfair. The alleged facts are;

i. The Applicants developments (including the supermarket) are unlawful and unapproved whereas both the supermarket and the residential property have developments consents from PUMA;

ii. The Respondents will continue to suffer amenity issues as a result of the current development being the residential property, whereas the residential property is located at the back of the property and does not adjoin the Respondents’ house;

iii. There is a health impact report supporting their claims whereas a health impact report was not submitted as part of the application for an interim injunction and is dated after the grant of the interim injunction. The Applicant further says that the report concerns the supermarket and not the residential property and in any event only makes recommendations about further action to be taken by the Respondents to support their claim;

iv. The Respondents have some legal right to a view, whereas there is no such legal right; and

v. The supermarket and the residential property are the same development whereas the two are separate developments.

b. The interim injunction is an abuse of process because the Respondents rely on the pending case against the supermarket, whereas the residential property is a separate development with a separate location relative to the Respondents’ home, and a separate development consent. There are no grounds and no causes of action against it.

4. Accordingly, the Applicant seeks to set aside the interim injunction granted on 24 December 2018.

The Opposition

5. The Respondents oppose the Application on the grounds;

a. There are current proceedings before the Supreme Court with regards to the development of the Applicant’s supermarket being built without due compliance with sections of the PUMA Act;

b. The residential home is being built at the back of the supermarket;

c. The legal action before the Supreme Court filed against the Applicant alleges nuisance and failure to comply with the PUMA Act as a result of the Applicant’s supermarket;

d. The building of the Applicant’s two storey residential building behind the supermarket will continue to add nuisance to the Respondents;

e. The current developments are not in compliance with ss37 and 46 of the PUMA Act because the works started without a development consent from PUMA and therefore the Respondents are challenging the validity of the development consent from PUMA;

f. They objected to the development of the Applicant’s residential property and that discharges their obligation as objector pursuant to section 45 of PUMA Act; and

g. It is in the best interests of justice that the interim injunction continues until the above issues are resolved.

Relevant Law

6. In AB v MN [2017] WSSC 79, Sapolu CJ set out the law in relation to an application to set aside an interim injunction;

(a) Jurisdiction to rescind an interim injunction

63. An interim injunction is an equitable remedy which lies in the inherent equitable jurisdiction of the Court. Just as the Court has an inherent equitable jurisdiction to grant an interim injunction, it should also have the same jurisdiction to rescind or discharge an interim injunction. In Harbottle (Mercantile) Ltd v National Westminister Bank Ltd [1978] 1 QB 146, 158, Kerr J said:

• “The Courts have a discretion to grant interlocutory injunctions wherever it is just or convenient to do so. They must equally have an inherent jurisdiction to discharge them on the same basis when the matter comes back to them for a further order”. 

64. In the New Zealand case of West Harbour Holdings Ltd v Waipareira Investments Ltd [2013] NZHC 402, para [11], Venning J said:

• “[Where] the order is regarded as of an ongoing nature or obligation, as in the case of an injunction, the Court has accepted it has inherent jurisdiction to rescind or vary the order should circumstances change...It appears that the orders setting aside or varying orders for security have been made in the exercise of the Court’s jurisdiction on a similar basis”.

65. In Electrical Equipment Co Ltd v Pace Network Services Ltd [2006] NZHC 76, para [32], Allan J said:

• “[32] It therefore becomes necessary to turn to the inherent jurisdiction of the Court. It is not in dispute between the parties that in the absence of contrary legislation the Court has an inherent power to control its own procedures: Ryde Holdings Ltd v Sorrenson (1995) 8 PRNZ 339, 345. The inherent jurisdiction of the Court to review the terms of an interim injunction was discussed by Greig J in Foodtown Supermarkets Ltd v Tse (1987) 2 PRNZ 545, 546:

• “There remains, however, a coexistent right in the case of a continuing order like an interim injunction to apply for its dissolution or rescission and that is not curtailed by the rules of the High Court that I have mentioned or the rule against review or reconsideration. It is, I think, consistent with the nature of an interim injunction which is a temporary but continuing matter restraining, for the time being and until the resolution of the substantive proceeding, any further or particular action or conduct by the defendant. The defendant must be entitled, without having to go to the Court of Appeal, to seek rescission of the order and a variation of it should the circumstances change and so require in justice that rescission or variation. Moreover, such an order, as was done in this case, is made subject to the further order of the Court so that it remains within the purview and authority of the Court to supervise and to vary or to rescind the order as circumstances require”.

66. With respect to counsel, there is nothing in the Supreme Court (Civil Procedure) Rules 1980 which provides jurisdiction for bringing a motion to rescind, discharge, or vary an interim injunction. Rule 197 provides only the procedure to be followed in a motion to rescind an ex parte order. The motion to rescind the interim injunction in this case would therefore have to be considered on the basis of the Court’s inherent jurisdiction.

70. In the usual motion to rescind an interim injunction granted ex parte, the approach that has been applied is whether there is not a serious question to be tried or that the balance of convenience does not favour the granting of the interim injunction. Such an approach was applied in Dive and Fly Ltd v Schmidt [2006] WSSC 40 to a motion to set aside an ex parte interim injunction. The same approach was also stated in The Proprietors of Otakanini Topu Block v Uruamo [2007] NZHC 404, para [14], where Rodney Hansen J said:

• “[14] The interim injunction may be rescinded if the defendants can show that there is not a serious question to be tried and/or that the balance of convenience does not favour the grant of an injunction”. 

Discussion

7. The test therefore to be applied to this application is  whether there is not a serious question to be tried and/or that the balance of convenience does not favour the granting of the interim injunction.

Whether there is not a serious question to be tried

8. In relation to the residential property, PUMA is named as a party in the Motion for an Interim Injunction. The order is worded;

…This Court doth hereby order that the development of the two(2) storey building at Vaoala, Planning and Urban Management Agency which is carried out by the Second Respondent Papalii Niko Lee Hang be stopped immediately until the Respondent fulfills the issues raised by the Applicants.

9. The interim injunction was issued against the Applicant, and not PUMA as Sapolu CJ noted that “an interim injunction cannot be issued against government under the Government Proceedings Act 1974”.

10. The starting point for this assessment is that the residential property has been granted a development consent by PUMA. This is not disputed although the Respondents say they challenge the legality of the development consent. This challenge is also directed at PUMA in relation to the supermarket. 

11. The submission by the Respondents is that the two storey building which is the residence is part of the development which includes the supermarket and therefore as there is a pending case between the parties in relation to nuisance and the supermarket, this injunction should remain. The exact wording of their ground of opposition is that there are current proceedings before the Supreme Court with regards to the development of the Applicant’s supermarket being built without due compliance with sections of the PUMA Act, and the building of the Applicant’s two storey residential building behind the supermarket will continue to add nuisance to the Respondents.

12. The Statement of Claim dated 18 December 2018 (‘SOC’) which is attached to the Motion for interim injunction dated 18 December 2018 states;

5. That in addition to the current legal proceedings before the Supreme Court as a ground, the Plaintiffs will also suffer amenity issues such as obstruction of view, blockage of air space and light as a result of the proposed development.

13. With respect, I am unable to find a cause of action in this SOC. I am also having difficulty understanding this submission. Both buildings have their own development consents. No separate cause of action is brought against the residential building in relation to nuisance.  It is rather being included as an extension of the supermarket when clearly it is not. The residential home is being built at the back of the supermarket.

14. The concerns expressed by Sala Lupe Chan Mow in her affidavit and supplementary affidavit are the amenity issues raised predominantly in relation to the supermarket. The health impacts as per the Report provided by the Ministry of Health are in relation to the supermarket. The Respondents argue that these issues should be extended to the residential property. I am not persuaded by this argument.

15. The Respondents say that the current developments are not in compliance with ss37 and 46 of the PUMA Act because the works started without a development consent from PUMA and therefore the Respondents are challenging the validity of the development consent from PUMA. Issues surrounding the issuance of the development consent by PUMA is with respect, an action against PUMA. That the development consent was obtained when 30% of the work was completed is a matter PUMA has taken into account (as seen in the Notice of Decision dated 22 November 2018). That the Respondents objected to the development of the Applicant’s residential property, is with respect, a matter for PUMA. The Applicant’s residential home has the approval of PUMA via the development consent. 

16. I find that in relation to the residential home, there is not a serious question to be tried. I cannot find issues separate from the supermarket pertaining to the residential property. A general attempt to connect the two will not suffice.  The commercial building being the supermarket is very different from the residential building as seen in photos submitted by the Respondents. 

17. I make no comment in regards to the merits of the claim against the supermarket in this ruling as there are current proceedings before the Court. 

18. I am further not convinced that obstruction of view, and blockage of air space and light in the SOC, are causes of action. There are no facts pleaded to support this or any cause of action against the residential home.

The Balance of Convenience

19. I am also satisfied that the balance of convenience does not favour the continuation of the interim injunction issued against the residential house. The Applicant has said in his affidavits that he has suffered significant financial losses and damages due to the length of time his work has been on hold, and it is costly to him as he has contractual obligations to his builders. There is nothing to contradict this claim by the Applicant. The affidavits by Sala Lupe Chan Mow are primarily directed towards the supermarket and touch vaguely on ‘further houses’ and ‘pressing impacts’. 

Result

20. The parties will most likely be neighbours for the foreseeable future. I encourage them to find an amicable solution to their dispute.

21. The application to set aside the interim injunction dated 24 December 2018 is granted. The interim injunction dated 24 December 2018 is set aside forthwith.

22. Counsel to file Memoranda as to costs within 14 days if they cannot agree.

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TUALA-WARREN J