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Whether you have been watching legal dramas, or are considering entering into court proceedings, you may have heard the phrase ‘injunction’. Injunctions can come in many different forms and include an array of orders (both actions and omissions). This article will outline what an injunction is and detail the most common types that the New Zealand courts award

What Is an Injunction?

An injunction can either instruct a person to do or to stop doing a specific action. They can compel a person to act, or prevent a person from commissioning, repeating or continuing a particular act. In New Zealand, an injunction is also commonly called an emergency application. 

An injunction is a legal remedy. The courts can grant this order to enforce a recognised legal right, such as ordering a person to complete their contractual obligations. Alternatively, injunctions can protect a legal right from behaviour that amounts to a legal wrong. In assessing whether an injunction is appropriate, the courts exercise their discretion on a case-by-case basis. They evaluate whether the injury or impact of an action (or omission) is likely to be continuous or substantial. The courts will also consider whether other legal remedies are more appropriate, for example, damages. To evaluate the most appropriate remedy, the courts will ultimately consider where the interest of justice lies. 

Restraint by an injunction begins from the point an individual receives notice of it. If an individual breaches the injunction, they may face imprisonment, a fine or have their property confiscated. The consequence will depend on the nature of the injunction and the violation. 

There is a range of injunctions that the courts can grant you:

  • perpetual restrictive injunctions;
  • mandatory injunctions; 
  • interlocutory and interim injunctions; or
  • freezing and search orders.

Perpetual Restrictive Injunctions

A perpetual restrictive injunction stops a person from committing or continuing to carry out a wrongful action. This means that the courts will grant it to protect an individual’s rights that might, or has been, infringed by another. For example, the courts may grant such an injunction to prevent you from breaching the terms of a contract that you have entered into or from passing on information that you received in contractual confidence. 

Mandatory Injunctions

Instead of preventing an individual from doing something, a mandatory injunction compels a person to perform some positive act. If the court grants a mandatory injunction, the order in question should outline the precise action that you must complete.

The court will not make an order:

  • requiring you to perform personal services, for example, to force a singer to perform;
  • that would require your continuous attention, or for you to employ others; or 
  • to do something that is impossible or illegal.

Instead, a court will usually order a positive act to undo a wrong that you have committed. For example, this may include delivering goods that you had to provide under a contract. 

Interlocutory and Interim Injunctions

Most people use the phrases ‘interlocutory’ and ‘interim’ interchangeably. Both remedies prevent actions for a temporary period; however, the two differ slightly. 

You can apply for an interlocutory injunction if you are awaiting a hearing or substantive court proceeding. A court will grant an interim injunction for a specific period, or until further notice from the Court. The temporary injunctions intend to protect you from harm that could occur within the duration of the injunction.

When applying for an interlocutory or interim injunction, you must demonstrate that:

  • you would experience irreparable injury without the injunction; and
  • that there is a serious issue of law or fact that could warrant a potential court case and the granting of a permanent injunction. 

After receiving an application, the court will balance the rights of all parties involved, as well as other factors:

  • whether the injunction would prejudice any third persons or parties;
  • the public interest; 
  • the status quo; or
  • the conduct of the individuals involved. 

Activities that typically warrant interlocutory or interim injunctions include:

  • putting a company into liquidation;
  • defamation; or
  • the abuse of the process of the court. 

Freezing and Search Orders

Both freezing orders and search orders are forms of interlocutory injunctions. However, the court will grant the two injunctions for slightly different reasons. 

Freezing Orders

A freezing order restrains you from removing, dealing with or reducing the value of assets that are in or outside of New Zealand. This court order prevents you from disposing of assets that would impact or defeat a current legal claim against you. 

If you are the party suffering injury, you can apply for a freezing order at any time during legal proceedings. In granting a freezing order, a court has to be satisfied that:

  • you have a good arguable case;
  • the assets in question exist and the person the order is against owns them; 
  • there is a real risk that this individual will dispose of these assets in a way that would defeat the claim against them; and
  • it would be fair to grant the injunction – the need to protect you, as the applicant, outweighs the hardship the order would have on the individual you are making the order against. 

Search Orders

The courts may grant a search order if there is evidence that is, or may be, relevant to a court case, or future court proceedings. Search orders permit authorities to secure or preserve any relevant evidence and will require the individual to allow entry onto their premises to obtain this evidence. 

The court should only make a search order if it is satisfied that:

  • the individual applying for the order has a strong case on a clear legal cause of action;
  • there will be, or could be, a severe loss or damage to the applicant if they don’t grant the order; and
  • there are sufficient grounds that the individual in question has this evidence in their possession, and a real possibility that they may destroy it or make it unavailable for use by the court. 

Key Takeaways

The New Zealand courts have a wide range of powers to enforce a legal right or prevent such a right from being affected by an unlawful act. There is a range of injunctions which the court can grant, each of which serves a different purpose:

  • a restrictive injunction, to prevent an individual from committing a wrong;
  • a mandatory injunction, to enforce a legal right or prevent its infringement through a positive act;
  • an interlocutory or interim injunction, if action needs to be taken quickly, and for a fixed time; and
  • a freezing or search order.

If you are thinking of applying for an injunction, our LegalVision’s disputes and litigation legal team can help. Call us on 0800 005 570 or complete the form on this page. 

Frequently Asked Questions

What is an example of an injunction?

Examples of restrictive injunctions are: restricting a party to a contract from doing something that would breach the terms of its contract, for example, transferring property promised under the contract to a third party; or  preventing construction work from starting where there is a question of interference with the rights of a third party. An example of a mandatory injunction is an order to remove rubbish or other property from another person’s premises.

What does it mean to seek an injunction?

Seeking an injunction is when an individual places an application to a court for an order that would prevent the commission or continuation of an act, or order a certain act to be carried out.

What are the types of injunction?

There is a wide range of injunctions or emergency applications. The most common are: perpetual restrictive injunctions; mandatory injunctions; interlocutory injunctions; interim injunctions; freezing orders; and search orders.

What do you mean by temporary injunction?

A temporary injunction refers to injunctions that only prevent or orders conduct for a fixed period of time. Freezing orders or search orders are temporary injunctions.

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