382 Colombo Street Limited v Frame and Mirror Limited

[2025] NZHC 2524

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2025-409-000524

[2025] NZHC 2524

BETWEEN

382 COLOMBO STREET LIMITED

Plaintiff

AND

FRAME AND MIRROR LIMITED

First Defendant

AND

HITESH RAVJI

Second Defendant

Hearing:	On the papers
Counsel:	D M Jackson for Plaintiff
Judgment:	1 September 2025

JUDGMENT OF PRESTON J

This judgment was delivered by me on 1 September 2025 at 4.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date……………

382 COLOMBO STREET LIMITED v FRAME AND MIRROR LIMITED [2025] NZHC 2524 [1 September 2025]

Introduction

[1]        The plaintiff, 382 Colombo Street Limited (Colombo), a property developer applies on urgent without notice basis for interim injunctive relief against the first and second defendants, neighbouring commercial property owners on Colombo Street, Christchurch.

[2]        The application is for interim injunctive relief and (in the underlying substantive proceedings) summary judgment requiring immediate removal of vehicles, temporary structures and storage containers from a right of way to allow access to Colombo’s property for construction of a residential development, and a permanent injunction preventing further obstruction of the right of way.

[3]Colombo is undertaking a multi-lot residential development on its land at 382 and

384 Colombo Street. The development is scheduled imminently to commence construction in early September 2025. Vehicular access over the defendants’ land pursuant to a registered easement—which has been in place since 1959—is essential for the development.

[4]        Colombo says the defendants have been and continue to thwart the easement by deliberately and wilfully preventing access. This includes by parking vehicles upon the right of way and, more problematically still, obstructing it with shipping containers or similar storage facilities thereon.

[5]        The application is brought without notice as there is an imminent construction timeline requiring access in early September to commence site clearance, necessary to commence construction of the development. Time is of the essence as approximately 75 per cent of the multi-lot development has been sold, subject to sunset clauses.

[6]        Further, Colombo says there is an established pattern of escalating conduct by the first defendant’s director Mr Patching including specific threats to build fences, preventing access, repetitive/ongoing trespass on the plaintiff’s land, and expressed contempt for legal process. Given this, it is argued an on-notice application carries a genuine risk of immediate obstruction that would defeat the underlying purpose of the

application, which is filed contemporaneously with the substantive proceedings alleging trespass, nuisance and interference with registered easement rights.

Approach to application for injunctive relief

[7]        The application came before me as Duty Judge. I must decide whether the well- known test for interim injunctive relief is met. This involves determining whether there is a serious question to be tried and where the balance of convenience lies, and undertaking an assessment of the overall justice in the matter, including the adequacy of damages and whether the status quo should be preserved.1

[8]        After preliminary review of the application and pleadings as filed, I convened a teleconference with counsel for the plaintiff, Mr Jackson, on 29 August 2025 to clarify the construction timeline and heard brief oral submissions.

The background

[9]        Affidavits filed in support of the application from licensed cadastral surveyor Boyd Thomson and two directors of the plaintiff, Carl Mattheus and Sean McCrory explain the background to the application. Mr Mattheus, a quantity surveyor, is co- director in Colombo together with Ciaran and Sean McCrory.

Multi-unit residential development

[10]      Colombo operates as part of MGroup Properties, specialising in residential construction and development. In 2025 it settled the purchase of property at 382 and 384 Colombo St, Christchurch, on which it is undertaking the multi-lot development. As is discussed further below, the plaintiff intends to utilise the right of way access under the easement at issue in these proceedings to access the construction site and subsequently for residents’ access to the units. In granting full resource consent for the 16-lot development including 15 residential and one commercial units, the Christchurch City Council specifically noted that right of way access was sufficient for traffic requirements. Nearly three quarters of the units are pre-sold unconditionally with sunset clauses

1      American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL) at [5] and see NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90 at [12]–[13].

typically 18–24 months from agreement dates, creating firm legal obligations. Colombo’s estimated completion is Q1/March 2026.

An historical easement

[11]      The easement at issue was created by Transfer Instrument 497553 dated 16 March 1959, in terms as follow:

… the registered proprietor and each of its servants tenants guests visitors licensees and invitees in common with the Grantors at all times by day or night with or without horses carts and vehicles of every description laden and unladen full free right of way and passage to pass and repass along over and upon …

[12]      The historical easement burden is expressly registered on both the defendants’ certificates of title:2

(a)The first defendant, Frame and Mirror Limited, owns Lot 2 DP 409266 (224m2) CT 434272.

(b)The second defendant, Hitesh Ravji, owns Lot 8 DP 20081 (228m2) CT CB791/20; and Lot 9 DP 20081 (280m2) CT CB790/86.

[13]      The right of way created by the easement is shown upon the survey plan prepared by Mr Thomson and depicting the obstructions thereon, a copy of which is annexed to this judgment.3 It runs from Wordsworth Street across various subject properties including those of the defendants, giving access onto Colombo’s properties at 382 (and

384) Colombo Street. Of the multiple servient tenement owners within that corridor, Mr Mattheus deposes the plaintiff understands that it is only the first and second defendants of all the properties bound by the easement who use the right of way corridor for parking, storage facilities or so on. For that reason, Colombo has not named other affected neighbours as parties in the present proceedings but undertakes to notify them of any orders made by the court.

2      There are some discrepancies in the information as set out in the statement of claim and supporting documentation filed in support of the application for interim relief, including as to apparent typographical errors/cross-references to title information however I rely upon the search copies of titles of the first and second defendants annexed to Mr Mattheus’ affidavit and the survey plan prepared by Mr Thomson, part of annexure B to his affidavit affirmed 28 August 2025.

3      Redacted to remove registration numbers of depicted vehicles.

Alleged interference and obstruction

[14]      Mr Mattheus states the director of the first defendant, Mr Patching, has told MGroup Properties, that he (Mr Patching) owns the land, denies MGroup Properties any access to the right of way whatsoever and actively blocks the right of way so that MGroup Properties cannot access its properties. This includes by Mr Patching deliberately parking his vehicle, a Mercedes-Benz van across the boundary between the plaintiff’s properties and the second defendant’s property, and the erection of a sign along the right of way declaring “MGroup Properties No Trespassing”.

[15]      Further, whilst (currently) the second defendant’s tenants which operate a dairy upon the second defendant’s land use the right of way for parking and have ignored the plaintiff’s request to remove their vehicles, it is only the first defendant and Mr Patching who have claimed, without foundation, that there is no easement and demonstrated deliberate antagonism towards MGroup.

Urgency: the construction timeline and no alternative access

[16]      Site mobilisation must be commenced in early September 2025. This involves delivery of site containers, comprehensive surveying, installation of temporary utilities and delivery of heavy construction machinery. Counsel for the plaintiff, Mr Jackson, explained that immediate access is necessary in the first instance to permit site clearance of various detritus which has been left on the vacant sites notwithstanding fencing across the Colombo Street frontage of the plaintiff’s property.

[17]      Further, the evidence indicates there is no practical alternative access to the right of way given the duration and nature of the construction process. Such access from the Colombo Street frontage would require closing public parking, driving heavy vehicles over footpaths, breaching traffic regulations, creating pedestrian safety risks, and potentially damaging public infrastructure. Mr Mattheus deposes, and I accept for purposes of the present urgent application that this is neither legally permissible nor practically feasible for the development scale. Further, after completion of the development, residents and commercial tenants will require ongoing daily vehicular access via the right of way as there will be no road frontage access.

Attempted resolution short of proceedings

[18]      Both Mr Mattheus and Mr Sean McCrory depose to the multiple attempts which they and the other director of Colombo, Ciaran McCrory have made by both personal contacts or attempted contacts and requests and by a courteous, clear and informative letter from its solicitor dated 6 June 2025 annexing copies of record of title and easement instrument, to no avail.

[19]      These attempts at amicable resolution short of court proceedings have been met by categorical denial (on the part of Mr Patching) of the registered easement rights and persistent refusal to accede to the plaintiff’s request to provide access and remove obstructions (containers and vehicles). On occasions, Mr Patching is said to have been extremely confrontational, aggressive and unwilling to engage in reasonable discussion. This includes making threats which are identified in the evidence filed including by threatening to build a fence to stop the plaintiffs gaining access to the site. I note, however, on the more recent occasion of 26 August 2025 he showed no animos during a lengthy conversation with Mr Sean McCrory albeit did not resile from his refusal to recognise the plaintiff’s entitlement to access over the easement.

The underlying claim

[20]      By its statement of claim Colombo pleads the defendants have unlawfully interfered with and obstructed the plaintiff’s easement rights by:

(a)parking business vehicles in the easement area, preventing vehicular access;

(b)placing shipping containers or storage sheds in the easement area;

(c)continuing such obstruction despite requests from Colombo to cease;

(d)(by Mr Patching of the first defendant) threatening to build a fence to completely block access via the easement; and

(e)the first defendant’s director parking his Mercedes vehicle such that the wheels are positioned on the plaintiff’s land.

[21]      Further, Colombo pleads the defendants have and continue to trespass and to act in disregard of Colombo’s rights under the easement by parking vehicles on the plaintiff’s land without consent and placing containers upon the right of way corridor. The defendants’ conduct constitutes a nuisance in law and by reason of the continued unlawful interference with the easement (and first defendant’s trespass) Colombo has suffered and continues to suffer loss and damage including:

(a)delay in commencing development works;

(b)risk of breach of contractual obligations to purchasers;

(c)increased construction and financing costs; and

(d)loss of business reputation and future opportunities.

[22]      As noted, Mr Thomson undertook a professional survey of the registered right of way and documented obstructions preventing practical use of the easement. He identified two large shipping containers, measuring 2.4m x 6.1m and (a converted container) 2.6m x 6.2m respectively. There were additionally four vehicles within and obstructing the easement, one of which, a black Mercedes-Benz van was positioned with wheels positioned on the plaintiff’s land at 382 Colombo St.

[23]      Mr Thomson opines the obstructions prevent construction vehicles and machinery from being delivered to the approved development site. Of particular concern, the Mercedes-Benz van encroaching onto Colombo’s property prevents Fire and Emergency New Zealand (FENZ) emergency vehicles from accessing the site in the event of fire or other emergency.4

4      Mr Jackson in oral submissions at the teleconference noted that even prior to any access by construction vehicles or the commencement of site clearing a potential fire risk arises as there are materials which have been left by unknown persons on the plaintiff’s property. Further, counsel noted the property is contained (at least in part, as I understand it) by wooden fencing.

[24]      Mr Thomson also notes that once development is complete the obstructions will prevent normal residential and commercial access for future occupants of the 16-lot development. Furthermore, whereas there is currently additional sealed formed width outside the legal easement area that could accommodate vehicle movements, this could only be used under informal arrangements with and at the mercy of each individual property owner.

Discussion

[25]      This Court has jurisdiction to grant relief under r 7.53 of the High Court Rules 2016, which entitles a party to a proceeding to apply for an interlocutory injunction provided it is accompanied by a signed undertaking to comply with any order to pay damages to compensate the other party/ies for damage sustained due to the injunction.5 Jurisdiction also arises under the Property Law Act 2007 and in the Court’s inherent jurisdiction to protect registered property rights.6

Claim: legal basis for relief

[26]      The underlying claim is set out in the plaintiff’s statement of claim of same date as application for summary judgment.

[27]      Colombo brings three causes of action, alleging trespass, interference with easement rights and nuisance. As to trespass, the evidence of the cadastral surveyor confirms encroachment beyond the defendants’ property boundaries onto the plaintiff’s land. It is submitted and I accept this constitutes clear, ongoing trespass. Mr Jackson submits the trespass to land provides the strongest immediate basis for injunctive relief, requiring immediate mandatory relief regardless of easement rights, as it involves unauthorised occupation of Colombo’s own property.

[28]      Proof has been adduced of the easement burden registered on the defendants’ own Certificates of Title providing absolute constructive notice. Counsel submits and I accept on the evidence before me the defendants are obstructing these rights through vehicle parking and container placement across the easement area. It is further submitted the

5      High Court Rules 2016, r 7.54.

6      The substantive proceedings involve registered easement rights under the Land Transfer Act 2017.

defendants in this manner are unreasonably interfering with the plaintiff’s use and enjoyment of registered easement rights. This Court in Lyons v Breslin recognised a claim in nuisance as the appropriate cause of action for such interference with established property rights.7

Is there a serious question to be tried?

[29]The evidence for Colombo satisfies me there is a serious question to be tried.

[30]      The photographic evidence demonstrates the Mercedes vehicle trespass, documented by professional survey. Colombo is prima facie entitled to injunctive relief on the basis of this established trespass. Additionally, there is a strong prima facie case on the basis of the plaintiff’s evidence of its registered easement rights and, again, the evidence of physical obstruction by vehicles and large shipping/storage containers placed upon the easement corridor.

[31]      In accordance with the plaintiff’s duty of candour, Mr Jackson outlined potential defences including acquiescence or long-standing use, arguable practical constraints on the use of the easement, limited scope of easement rights based on original usage/purpose;8 lack of viable alternative access (via Colombo Street); and absence of immediate urgency. I accept, for the reasons set out by counsel in his memorandum none of the potential defences stands in the way of immediate without notice relief. Further I am satisfied that orders as sought (which are subject to reasonable conditions protecting the defendants’ legitimate interests including as to controlled conditions of construction access9) are both appropriate and consistent with prior decisions of this Court and the District Court in broadly similar circumstances.10

7      Lyons v Breslin HC Auckland CIV-2009-404-7165, 29 March 2010.

8      Grinskis v La Hood [1971] NZLR 502: easement use of the dominant tenement may change, provided the essential character remains unchanged. In the present case, Colombo’s intended development is residential in nature, consistent with the original grant albeit the plaintiff acknowledges on an intensified scale by comparison with the historical position.

9      As noted, the Christchurch City Council resource consent endorsed the right of way access as sufficient for the traffic requirements of the particular development in this case.

10 See Anderson v Bashford Antiques Ltd [2023] NZDC 5465; A C Rhodes Ltd v Bush Inn Shopping Centre [2019] NZHC 877 and Lyons v Breslin, above n 6.

Where does the balance of convenience lie?

[32]The application also satisfies me the balance of convenience favours the plaintiff.

[33]      The September 2025 construction commencement timing is critical for project viability and meeting purchaser agreements, which include multiple pre-sold units’ sunset clauses creating hard contractual deadlines. Not only would damages fail adequately to compensate Colombo for development delays but there is ancillary risk as any breach of Colombo’s contractual obligations may be expected to cause commercial harm, including financing costs, lost opportunity costs and reputational damage.

[34]      Colombo’s undertaking as to damages protects the defendants’ legitimate interests. Furthermore, as noted Colombo proposes reasonable access conditions to preserve the defendants’ legitimate business operations and no interference with their core business activities is indicated nor requirement created beyond removing the unlawful obstructions. Additionally, the status quo favours the plaintiff as its rights under the easement have existed since 1959. The evident and continuing obstruction disturbs the longstanding legal arrangements and property rights which have been in place some 66 years as a result of the registered easement.

[35]      Finally, notwithstanding registration of the easement in favour of Colombo upon the defendants’ titles, and the directors’ engagement with the defendants to request access and the removal of obstructions, it is clear the first defendant has engaged in a pattern of escalating conduct. During December 2024 he sent threatening text messages including the message “stay the fuck off our property’s (sic) you have no easement rights”, and subsequently put up a “No Trespassing” sign. During June 2025 he aggressively confronted Messrs Mattheus and Ciaran McCrory when they approached him to discuss the matter, and he has made threats to erect a fence. He continues to trespass by parking his Mercedes vehicle on the plaintiff’s land. In that sense the defendants’ conduct has been undertaken with “eyes wide open” to the proven easement. The wrongful conduct, maintained by the refusal in the 2025 August telephone conversation to acknowledge existence of the easement and to seek legal advice undermines any claim on the first defendant’s part to resist injunctive relief.

Public interest: and commercial imperative

[36]       Public interest considerations favour relief: the plaintiff has obtained full resource consent for the urban residential development with the Christchurch City Council specifically approving right of way access. I have discussed the commercial imperative above, a further factor in favour of relief.

Adequacy of damages

[37]      There is force in Mr Jackson’s submission that this case fails all criteria for awarding damages instead of injunctive relief, making injunction the appropriate remedy.

[38]      The injury is not small (obstruction prevents a multi-million development from beginning with hard contractual deadlines). The impact includes development delays, potential sunset clause breaches, financing costs, reputational damage, and lost opportunities that cannot be precisely quantified or compensated through monetary awards. The continuing nature of the development requires ongoing access that monetary payment cannot provide. None of the obstructions is permanently situated, although some, that is, vehicles are more easily removed than others, such as shipping containers.

[39]      As recognised in Shelfer v City of London,11 the jurisdiction to award damages instead of injunctions in continuing actionable nuisances “ought not to be exercised except in very exceptional circumstances”. I accept this is not such a case, and that the application for interim relief is appropriate, on the reasonable terms as sought.

Without notice remedy

[40]      I am satisfied that requiring the application to be advanced on notice would cause undue delay and genuine prejudice for the reasons evidenced in the application itself and, in particular, given the first defendant’s director’s apparent refusal to accept legal advice or to seek the same, while continuing to adopt an obstructive course of conduct in the face of the express terms of the easement upon the relevant certificate of title.

11     Shelfer v City of London Electric Lighting Co Ltd [1895] 1 Ch 287.

[41]      Further, the substantive proceedings have been filed together with an application for summary judgment, which will be allocated a first call promptly following the issue of the Court’s order on the application for interim relief.

Conclusion

[42]      For all these reasons I find the plaintiff has clearly established grounds for this Court to grant without notice interim injunctive relief in terms as sought in the Draft Order filed on 28 August 2025, together with the undertaking of the plaintiff as to damages.

[43]There is an order, accordingly.

[44]      The Plaintiff is directed to file an amended draft Order for sealing, to include the undertaking as to damages and that costs are reserved.

………………………………………

Preston J

Solicitors:

MDS Law, Christchurch

Counsel:
D M Jackson, Barrister, Christchurch

ANNEXURE

Colombo Street