A C Rhodes Limited v Bush Inn Shopping Centre Limited

[2019] NZHC 877

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000136

[2019] NZHC 877

BETWEEN

A C RHODES LIMITED

Plaintiff

AND

BUSH INN SHOPPING CENTRE LIMITED

Defendant

Hearing:	12 April 2019
Appearances:	P F Whiteside QC for Plaintiff T J Mackenzie for Defendant
Judgment:	17 April 2019

JUDGMENT OF GENDALL J

A C RHODES LTD v BUSH INN SHOPPING CENTRE LTD [2019] NZHC 877 [17 April 2019]

Introduction and background

[1]    The plaintiff applies for an interim injunction in a situation where it contends the defendant is committing the tort of nuisance by disturbing rights of way granted to the plaintiff under two registered easements entered into by the defendant’s predecessor in title Bush Inn Centre Limited over 22 years ago on 3 February 1997.

[2]    The plaintiff and the defendant own neighbouring commercial properties in a block of land in Christchurch bounded by Waimairi Road, Riccarton Road and Newnham Terrace. The rights of way granted to the plaintiff have meant that for over 22 years the plaintiff, its tenants and invitees have enjoyed uninterrupted vehicle and pedestrian rights of way over part of the defendant’s land for the benefit of the plaintiff and the significant businesses operating from the plaintiff’s land. Those right of way easements granted in 1997 providing full and interrupted rights of way over those portions of the defendant’s land which to avoid any confusion are outlined in the plan annexed as Appendix 1 to this judgment.

[3]    In that plan there are in effect four areas of the defendant’s land which are the subject of these rights of way. The first is the area outlined in orange on the plan and noted as “A1” which all parties have referred to as the “front right of way”. The second is that area outlined in green on the plan and noted as area “Y, Q, AY and S” and which the parties describe as the “side right of way”. The third is the area outlined in black and noted as “AA – AB” on the attached plan and which the parties note as the “rear right of way”. The fourth area is outlined in white as area “AC” on the attached plan and I will refer to it as the “northern right of way”.

[4]    In February 2017 the defendant decided to demolish an existing building (shown on the plan as “former Liquor King” building) and to build a larger building on and around that site for a new Briscoes retail outlet. The footprint of the new Briscoes building covers not only the previous Liquor King bottle store outlet which has now been demolished but also some area affecting the 1997 rights of way granted in favour of the plaintiff.

[5]    Importantly, those right of way easements granted in 1997 entitled the defendant to relocate the rights of way which had been granted over its land “so as to provide similar access rights to” the plaintiff.

[6]    When construction of the new Briscoes retail outlet commenced on the site early in 2019 fences were installed by the defendant around the building site for the purposes of the construction work. On the plan in Appendix 1 it is the entire area which is outlined in yellow which is now inside those fences and is the full construction site designated by the defendant for construction of the Briscoes building. Fences have been erected around the perimeter of this yellow area such that, as will be seen from the plan, three of the four rights of way in favour of the plaintiff (the front right of way, the side right of way and the rear right of way) are now effectively closed and quite inaccessible to the plaintiff, its tenants and invitees. The fourth right of way area marked “AC” which I have designated as the northern right of way, however, remains open and accessible.

[7]    With one exception, it seems that when construction of the proposed Briscoes Building began in early 2019 and the construction fences were installed around the building site, the defendant did not put in place similar rights of way at least to the front right of way and side rights of way which were now effectively closed. Nor does it seem that the defendant provided to the plaintiff any concluded plans or details of plans it had for similar rights of way to replace these particular easements. The exception broadly seems to be with respect to the rear right of way marked AA – AB on the plan. At this point, it seems the defendant as a practical matter (without anything being done formally) has confirmed that the plaintiff is able to use in place of this right of way that small access area adjacent to the building labelled on the plan as the Smiths City building which I have noted as area XY. No plans for this, as I understand it, have been prepared. It seems, however, that this area has simply remained open and is available and being used for right of way access by the plaintiff, its tenants and invitees in substitution for the rear right of way area.

[8]    Once all this occurred, then the plaintiff claims it moved promptly to protect its rights and the different position in which both the plaintiff, its tenants and its invitees found themselves, to protect their rights under these longstanding rights of

way by issuing the present proceeding. The statement of claim, application for an interim injunction and appropriate undertaking as to damages were filed in this Court on 20 March 2019. This was only after the plaintiff maintains it had found out in a meaningful way what the defendant was finally proposing with its new Briscoes retail building. It only achieved this, the plaintiff says, by obtaining the resource consent and building consent documentation from the Christchurch City Council which did not happen until 26 February 2019.

[9]    In this proceeding the plaintiff contends that the defendant is clearly committing the tort of nuisance as none of the rights of way created by the two easements can be properly utilised and no similar rights of way have been put in place. The defendant has contended that the plaintiff’s pleadings do not mention a claim in nuisance. The plaintiff responds disputing this but, in any event, seeking leave, if required, to amend its pleading to include an appropriate claim against the defendant in nuisance. At this early stage of this proceeding any such amendment is appropriately. The leave sought is granted.

The right of way easement conditions

[10]   The right of way easements were created by formal land transfer documentation dated 3 February 1997. The two easements are relevantly in the same terms and provide at para 3.2 for the plaintiffs to have:

The full free uninterrupted and unrestricted right, liberty and privilege for the [plaintiff] and the [plaintiff’s] tenants, servants, workmen, licensees and invitees and persons authorised by the plaintiff from time to time and at all times by day and by night and at the plaintiff's will and pleasure to pass and re-pass with or without motor vehicles and any other vehicles of any description laden and unladen, machinery and implements of any kind for all purposes whatsoever connected with the use and enjoyment of the dominant tenement (the plaintiff’s land) over and along the right of way area.

[11]   Clause 4.5 of the right of way easement contained the clause permitting the defendant to substitute similar access rights and stated:

4.5 The grantor shall have the right at any time to relocate the right of way area in such manner or over such part of the servient tenement (the defendant’s land) so as provide similar access rights to the plaintiff. The defendant shall at its own cost forthwith after the relocation, arrange for registration of a further right of way easements in the form of a Memorandum of Transfer over

that part of the servient tenement (the defendant’s land) as then affected by the relocated right of way. The plaintiff shall contemporaneously execute and deliver to the defendant a Memorandum of Transfer surrendering the existing right of way easement.

Principles relating to the granting of interim injunctions

[12]   Rule 7.53 of the High Court Rules entitles a party to a proceeding to apply for an interlocutory injunction provided they file a signed undertaking to comply with any order for the payment of damages to compensate the other party for damage sustained by the injunction. Such an undertaking has been filed here. The principles governing the granting of an interim injunction are well settled. Originally they were set out in American Cynamid Co v Ethicon Ltd.1 In that case the Court posed three broad questions that were involved as follows:

1.Is there a serious question to be tried?

2.Where does the balance of convenience lie?

3.Finally an assessment of the overall justice of the position is required as a check.

[13]   These three stages were also summarised by the Court of Appeal in NZ Tax Refunds Ltd v Brooks Homes Ltd.2

[14]Relating to stages 2 and 3 noted above, McGechan on Procedure states:3

HR7.53.04

In respect of stages 2 and 3, the question is whether refusing the injunction would be harder on a plaintiff who was successful at trial, than would granting it be on an ultimately successful defendant: Roman Catholic Bishop of the Diocese of Auckland v Boynton [2018] NZHC 2636 at [14]. This assessment is undertaken by reference to the adequacy of damages, preservation of the status quo, the uncompensable disadvantages to either party, and the relative strengths of their cases…

[15]   And so far as the third stage is concerned, the ultimate question is where the overall justice in the matter lies. This requires the Court to weight the interests involved against each other. Questions, as I have noted, usually arise here over the

1      American Cynamid Co v Ethicon Ltd [1975] AC 396 (HL).

2      NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90.

3      AC Beck and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR7.53.04].

adequacy of damages should relief not be granted and obviously a consideration of whether the status quo should be preserved.

[16]I turn now to consider these three stages.

“Serious question to be tried?”

[17]   Putting this question another way, the Court must be satisfied the claim it is considering is not frivolous or vexatious. Gale on Easements4 summarises the position in situations like the present in this way:

Perpetual injunctions

14.63 Before a perpetual injunction can be granted to restrain a private nuisance or the disturbance of an easement, the Court as a general rule requires the party to establish his legal right and the fact of its violation. But when these things have been established, then, unless there be something special in the case, the party is prima facie entitled to an injunction to prevent the recurrence of that violation. An easement is a legal right. The remedy by injunction is in aid of that legal right. The owner of the right is entitled to prohibitory (or negative), as opposed to a mandatory, injunction; unless there is something special in the case, for instance laches, or the fact that the disturbance is only trivial or occasional. Or, though the Court has a discretion to award damages in lieu of an injunction in cases where an injunction would otherwise be available but would be oppressive. The cost to the defendant of complying with a negative injunction is not a factor to be taken into account.

[18]   In a recent decision in this Court, Edwards J in McInnes v Jones5 confirms that an injunction is the usual remedy in cases like the present alleging nuisance or trespass.

[19]   In this case I am satisfied there is a serious question to be tried. It is clear that the right of way easements themselves do entitle the defendant as grantor “at any time to relocate the right of way area…so as to provide similar access rights to the [plaintiff as grantee]”. When certain of the rights of way are unilaterally closed by the defendant, however, then alternatives to provide “similar access rights” to the plaintiff are required. This is so because from a practical view point, there is a need to ensure in terms of para 3.2 of the easement, that the plaintiff, its tenants and invitees have the “full free uninterrupted and unrestricted right…from time to time and at all times…to pass and repass” on the right of way area.

4      Gale on Easements, 20th ed at para 14.63.

5      McInnes v Jones [2017] NZHC 2781 at paras [20] – [28].

[20]   It is clear, in my view, that the plaintiff has an arguable case here that its legal right to the easements has been and continues to be violated, that it has a valid claim against the defendant amongst other things in nuisance, and that there is a serious question to be tried. This means that whether the plaintiff should be prima facie entitled to an injunction to prevent the recurrence of that violation is a live issue here.

The balance of convenience consideration

[21]   Turning now to the second stage of the Court’s assessment, I am required to consider the balance of convenience. This requires a consideration of the impact on the parties in this matter if an injunction is either granted or refused.

[22]On this aspect, McGechan on Procedure6 notes:

(1)       Introduction

The balance of convenience is said to be the guiding principle in granting an interlocutory injunction: Eng Mee Yong v Letchumanan [1980] AC 331 at 337. It involves a decision as to whether granting or refusing an injunction is the course which, after the action itself has been tried and the issues between the parties determined, would fairly allow the adjustment of the rights of the parties in a way that accords with fairness and justice…

And:

…

The question of balance of convenience generally only arises where there is doubt as to the adequacy of damages: American Cyanamid Co (above) at 408– 409, 510–511; Cabco Group Ltd v Bartlett (2009) 6 NZELR 500 (HC) at [30].

…

[23]   On these matters I am satisfied that in all the circumstances here this is not an appropriate case for an award of damages. In my view, damages in this case generally would amount to an inadequate remedy.

[24]   In my view, the present case is not one where the situation is merely temporary and involves a small injury to the plaintiff’s legal rights. Here, three of the plaintiff’s

6      McGechan on Procedure, above n 3, at HR 7.53.06(1)

rights of way which it and its tenants have enjoyed for over 22 years are permanently obstructed and unusable. (These are the rights of way on the plan in Appendix A noted as the front right of way, the side right of way and the rear right of way) Only one of these, that being the rear right of way shown on the plan as AA and AB has, in a     de facto way, been shifted to what is said to be a “similar” right of way position. This “similar” access location is located several metres to the north. Purely from a practical view point, and despite acknowledging that no real discussion or formal approval, as I understand it, has been given to this change, it does seem to me that the new access is not altogether different. It is an access that is able to be used by the plaintiff and its tenants now, in particular to give access, first, to Snap Fitness premises and, secondly, via the northern right of way AC to the BP Service Station.

[25]   I am satisfied too that the nuisance or injury caused to the plaintiff and its tenants by the elimination of at least two of its previous rights of way is not truly capable here of being adequately recompensed in damages. Certainly, in my view, it does not seem capable of being the subject of a proper estimate in money terms. There is evidence before the Court of a Mr Stanley, a valuer familiar with the plaintiff’s properties, who expresses the opinion that the existing rights of way are of significant value but he does not nominate a monetary sum for that value.

[26]   Finally, I note that, in what seems to be a breach of a specified condition in the Christchurch City Council resource consent obtained for the defendant’s Briscoes development, the defendant appears to have deliberately chosen to commence its building project without putting in place similar access arrangements for the plaintiff and its tenants related at least to the front and side rights of way.

[27]   It is useful at this point also to note the comment of the learned authors in Civil Remedies in New Zealand7 where it is noted:

6.34     Conduct of the defendant: acting with “eyes wide open”

The defendant’s conduct may also be an important factor to be taken into account in determining the balance of convenience. Again the principles relevant to the defendant’s conduct in respect of the grant of a permanent injunction should be referred to. However, in the context of an interim injunction, a situation often arises where the defendant has undertaken its

7      Civil Remedies in New Zealand, 2nd ed, at Ch 6.34.

allegedly wrongful conduct while fully aware of the plaintiff’s rights or, to adopt the language of the cases, has acted with its “eyes wide open”. In such a situation, the defendant usually will not be entitled to claim that an interim injunction should not be granted because of the inconvenience it will suffer…A defendant cannot create his own inconvenience and then have it taken into account in balancing the scales of inconvenience – at least not when he embarks upon questionable conduct with his eyes open.

[28]   Here, the plaintiff contends that this is precisely what the defendant has done. What does seem clear from a significant amount of material before the Court is that in the lead up to the commencement of this development on the site in January 2019, there were considerable communications and negotiations between the plaintiff and defendant and their advisors over these issues. Nothing finally appears to have been resolved or concluded, however. Instead, after what seems to be a period of some silence or inaction from the defendant later in 2018, early this year, without any detailed reference to the plaintiff, the defendant simply fenced off the building site and shut down access for the plaintiff and its tenants over at least two of their existing rights of way.

[29]   On this aspect, it is useful to mention evidence filed for the defendant of     Mr Andrew Bell, Group Manager of Ganson Group Ltd, which is the agent for the defendant on this development.

[30]Mr Bell in his 10 April 2019 affidavit filed in this proceeded stated at [17]:

As a result of the new development the rear and side easements have been slightly shifted but are not materially affected by the redevelopment. I produce two diagrams as exhibit A which show the movement of these easements”.

[31]   This comment and the diagrams produced are wrong in material aspects and at least misleading. The rear easement (that shown as AA-AB) is indeed shifted to alongside the Smiths City building. Arguably it does still provide some access from the Bush Inn carpark area to the Snap Fitness 24 hour gym and also through the continuing right of way AC, to the BP Service Station.

[32]   So far as the side right of way is concerned, (shown as Y, Q, AY and S on the plan) however, it is quite wrong to say that this is “slightly shifted, but not materially affected by the redevelopment”. Previously this was a two-lane vehicle access off

Riccarton Road. With the current fencing of the building site area, fully enclosing the area shown in yellow on the plan, almost up to the Bush Inn Tavern on this side, only a small minimum width walkway area is provided for here. It is also in a new position to the south of the previous side easement. It seems this allows only narrow walking access at best and certainly not the two-way vehicle access from Riccarton Road to the Bush Inn parking centre that the previous side right of way provided.

[33]   Nor does this new pedestrian accessway link up with the old right of way shown as A1 on the plan. This A1 right of way is simply closed and not replaced in any way. Accordingly, there is no present access of any kind from this side right of way to the BP Service Station.

[34]   Indeed, at a general level, the new Briscoes building site area adjacent to Riccarton Road is fenced so there is no access from Riccarton Road to any part of the Bush Inn carpark area or site. The only access to the Bush Inn carpark area therefore, is off Waimairi Road.

[35]   It is apparent from all the affidavit evidence before the Court that there is some significant dispute between the parties as to how this may have come about and the whole history of this matter. What does appear clear, however, is that finally, early in 2019, the defendant decided to proceed with its Briscoes development, it seems without reference then to the plaintiff, and ignoring its immediate obligation to provide continuing similar access at least over the front and side rights of way, notwithstanding that there would be an impact on the plaintiff and its tenants. As a result, the defendant has been quite unable to provide “similar” right of way access, to all the areas to which the plaintiff was entitled, at least for the time since the construction site fences were erected. In this respect, again from the affidavit of Mr Bell he deposed:

[54] Ultimately we were at a position where we had to make a decision to proceed, or lose the opportunity. We considered that in relocating the front easement in the way notified to ACR, that we were complying with the easement clause by providing similar access. We therefore decided to proceed with the development rather than lose this significant opportunity to develop Bush Inn - and the surrounding area in consequence. Thus Bush Inn decided to accommodate the relocated easement and apply for a new resource consent, requiring building redesign, reduction in building area and new building consent occasioning delay and cost to the project. Had we not taken that

course, the Briscoes would now be open already – and BP would already be reaping the benefits of increased custom.

[36]   A relocation and continuation of the various rights of way in terms of the specific provisions in the easements was always going to be required. And, these new rights of way needed to be “similar”. To suggest otherwise, ignores the legal obligations on the parties. Instead, from a practical view point, the defendant simply shut the front right of way and effectively shut the side right of way (given that this latter shifted right of way access could no longer accommodate vehicle access).

[37]   Whether or not all this is sufficient for me to conclude that the defendant in acting wrongly had its “eyes wide open” is not something on which I need to make a definitive decision. Suffice to say that, I am satisfied the defendant did choose to proceed with its development shutting down at least some of the important existing rights of way the plaintiff enjoyed without practically putting in place similar access rights as it was required to do under the easements. Whether or not the defendant claims that this was to occur only on a temporary basis, in my view, is of no moment. The fact that effectively it violated the plaintiff’s legal rights, rights that had been enjoyed for many years and this continues at least in part, is sufficient for a remedy to be provided here.

[38]   On all this it is useful also to note the general principle enunciated by Gault J in Knowles v Henderson8 where he held:

Refusal of an injunction where there is found to be a clear breach of an easement has the potential to encourage flagrant breaches followed by pleas of hardship, so as to effectively bulldoze away the rights of owners of a dominant tenement.

[39]   It is clear, in my view, that the defendant here should have put in place similar rights of way, even just from a practical and day to day use point of view, before it commenced its building work on this site. It seems too, as I have noted above, that it may have ignored aspects of the new building’s resource consent terms imposed by the Council along with the plaintiff’s rights. Whether or not, as Mr Whiteside QC for the plaintiff contends, “the defendant has literally bulldozed ahead hoping the plaintiff

8      Knowles v Henderson [1991] 1 NZ Convc 190,704 at 190,716

will stand back and not take steps to protect its rights and importantly those of its tenants” in all the circumstances here cannot be determined definitively. Suffice to say that, noting Mr Bell’s comments in his affidavit outlined at [35] above, there may well be something in this contention. I make no firm finding that this is the case here, however.

The overall justice of the case

[40]   I turn now to the third stage of the Court’s assessment whether an interim injunction should be imposed. This involves consideration of the overall justice of the case. As McGechan on Procedure9 notes, it is essentially a check on the position that has been reached following the earlier analysis of whether there is a serious question to be tried and the balance of convenience. Issues over the general public interest, whether any interim relief granted would have the effect of a final judgment and the conduct of the parties, including factors of delay, are relevant here.

[41]   Some of the factors I have outlined under the balance of convenience head, noted above, impact to a degree on this overall justice consideration as well.

[42]   Factors customarily considered under this third head such as absence of “clean hands”, delay and acquiescence on the part of the plaintiff, in my view, are of little impact in this case. None of these factors could be sheeted home to the plaintiff here. And, despite the months of negotiation and discussion up to about the middle of 2018 which took place between the parties, other factors such as the ultimate decision taken by the defendant particularly to fence and close off the front and side right of ways without any real alternative accessways of a similar kind being put in place, in my view, does not sit well with the defendant’s clear and acknowledged obligations under the right of way easements. This has meant that proper access to the BP service station site in particular, from the Bush Inn car park via the side and front rights of way, an access which has been enjoyed for many years, without more had simply gone in the meantime.

9      McGechan on Procedure, above n 3, at para HR7.53.07.

[43]   At a general level, the situation and impasse that has arisen between these parties who remain as neighbours cannot continue and must be resolved. The defendant, as I have noted, is in clear breach of some of its obligations under the right of way easements. It is also, however, significantly underway in its construction programme. The Briscoes building, it is fair to say, when finished and occupied by Briscoes, is likely to increase interest and patronage in all the retail and commercial outlets in the area and this, it is said, will be for the overall benefit of not only the defendant and its tenants but also the plaintiff and its adjoining tenants.

[44]   Mr Bell in his 10 April 2019 affidavit addresses what he says are the dire implications of a halt in the defendant’s construction programme in this way:

[64]      If this interim injunction was granted, construction will halt. There would be significant costs in the millions of dollars to the defendant, others will also suffer – affecting contractors, subcontractors and all parties commercially associated with the build.

[65]      If there are further delays, Briscoes will seek to exit the tenancy agreement given the delays already experienced to date as a result of the redesign for relocation of the A1 right of way.

[45]   These difficulties expressed by Mr Bell I accept may be real here. A pragmatic solution of the situation faced by the parties is required. Some suitable alternative access arrangements as far as may be possible need to be put in place for the plaintiff and its tenants related to the side and front rights of way. In the rare situation that this may prove not to be possible, even in part, some other suitable arrangement, including even perhaps a compensation agreement, needs to be reached.

[46] By way of example, I turn now to the situation concerning the three original rights of way at issue being the side right of way, the rear right of way and the front right of way. Initially, relating to the side right of way (marked Y, Q, QY and S), as a practical matter I understand this can be located alongside the existing Bush Inn Tavern site. It would entail simply widening that narrow area currently providing only pedestrian access as I note above at [32]. This access running from Riccarton Road to the Bush Inn car park would also need the existing construction site fence shifted accordingly. This might prove inconvenient but, as I understand it, from the defendant it is always intended this area is to be a future two-way vehicle access right of way from Riccarton Road to the Bush Inn car park and would provide a new access way at

least to the rear right of way noted as AA – AB. It is presumed this could be done now without major difficulty but that, of course, is a matter for the defendant. One would have thought the defendant before embarking on its development would have carefully considered these issues before providing its confirmation that ultimately this new right of way would provide a two-way vehicle access when the Briscoes development is concluded.

[47]   The position concerning the rear right of way marked AA – AB also in my view does not create a real difficulty at this point. From a practical point of view on the site, this has now been relocated some metres closer to the Smiths City building but it does provide vehicle access to the right of way area marked AC and therefore to the back of the Snap Fitness building and the BP Service Station site.

[48]   The position, however, concerning the front right of way marked A1, as I understand it from the evidence before the Court, may be somewhat more problematic. It is likely that the previous A1 right of way area is now subject to being built over as part of the new Briscoes building. The defendant’s proposal concerning what it says is a possible similar alternative right of way I am told is that this would be eventually sited adjacent to Riccarton Road and immediately alongside the new Briscoes building under construction.

[49]   In a normal world one would have expected that negotiations between the defendant, the plaintiff and perhaps also BP would have been concluded prior to the defendant commencing its development and such that this alternative area was accepted by all as suitable for the new right of way. In addition, if necessary, some temporary arrangements could also have been then put in place either for access to the BP Service Station over this area in the meantime, or if construction did not allow this to happen, then for some other arrangements to be made which possibly could have included a degree of compensation. Obviously, none of this happened.

[50]   Nevertheless, from a pragmatic point of view, it is clear that BP maintains its own principal service station access directly onto Riccarton Road from its own site. Its genuine complaint regarding the non-availability of the front A1 right of way access must, it seems to me, relate principally to concerns that customers who use the Bush

Inn car park might have some difficulty gaining access to the service station now direct from the car park as no doubt happened in the past in part at least from the front right of way.

[51]   This concern, as I see it, is somewhat obviated by the fact that the previous right of way marked AC still remains open and, although possibly less visible and convenient, Bush Inn customers can physically access BP Service Station through the relocated rear right of way AA – AB. This is not a perfect alternative but in all the circumstances here assists to a limited degree.

[52]   The authorities have always made clear that with respect to an enquiry at this stage 3 and also the balance of convenience stage 2 to consider the issue whether to refuse an injunction, the question to be asked is whether such refusal would be harder on a plaintiff who is successful later at trial than would granting it be on an ultimately successful defendant. The situation in the present case is one largely that has been brought about by decisions taken by the defendant. It is my view that a short- term solution to meet the present situation created largely by the defendant is likely to be available, which would provide a degree of further access to the plaintiff and its tenants or at least, in part, some appropriate compensation. As I see it, the plaintiff has a relatively strong case against the defendant and has clearly met the test establishing a serious question to be tried.

[53]   The interim injunction sought by the plaintiff effectively seeks an interim mandatory order. It is clear that interim mandatory orders are “rare indeed” to use the words outlined by a former Chief Justice in Soft-Tech International Pty v Ball.10 In this case, however, I consider the amended orders which will follow are justified in all the circumstances of this case for two reasons.

[54]   First, the consequences of my fully declining the interim injunction application brought by the plaintiff here are significant. The plaintiff and its tenants have enjoyed access under the various rights of way for over 20 years. On the evidence before me it seems these were negotiated at the time as critical matters and concessions for which in return the plaintiff and BP gave their consents to the original resource consent grants

10     Soft-Tech International Pty v Ball [1990] 3 PRNZ 683 (HC) at 684.

made to the defendant and its predecessors for aspects of its then Bush Inn development. Other evidence before me from the plaintiff and its tenants indicates that this closed access has had significant effect on the tenants both financially and otherwise. I am satisfied that damages would not be likely to provide an adequate remedy here. The interests of both parties to this proceeding and the balance of convenience favour a practical solution being put in place now to remedy this situation.

[55]   Secondly, given that this interim injunction application is to succeed in a slightly limited way, I consider that the best practical solution for the parties here is for a mandatory order to be made (with leave reserved to return to this Court in the event of genuine impossibility in implementing the order). In my view, such an arrangement would be in the overall interests of justice in this case.

Result

[56]   The plaintiff’s interlocutory application for an interim injunction here largely succeeds.

[57]   I now order that until any further order of this Court is made, an interim injunction is to issue against the defendant to restrain it, its servants or agents, or any of them either alone or in conjunction with anyone else, from interfering with or blocking the plaintiff’s rights of way pursuant to the easements  created  by  Transfers A290922.11 and A290922.13 over the defendant’s land at the corner of Riccarton and Waimairi Roads, Christchurch until the defendant has practically created similar access rights of way over the defendant’s land in favour of the plaintiff, its invitees and tenants to properly replace the previous rights of way shown on the plan annexed as Appendix 1 as A1 (the front right of way) and Y, Q, AY and S (the side right of way), (to be later followed by the formal grant of appropriate registerable easements when the defendant’s development is completed).

[58] I reserve leave for either of the parties in the event that implementation of the order at [57] above proves genuinely impossible, on 10 working days’ notice to apply for a variation of this order. (In this regard, I refer the parties again to my comments noted at paras [46] – [51] above.

Costs

[59]   Costs are reserved. The plaintiff has largely succeeded in its present application and in the usual course would be entitled to an award of costs. In the event that parties are unable to agree on this issue of costs then they may file memoranda sequentially which are to be referred to me and, in the absence of any party indicating they wish to be heard on the question of costs, I will decide that issue on the material then before the Court.

...................................................

Gendall J

Solicitors:

Peter Whiteside Queens Counsel, Christchurch Tim Mackenzie, Barrister, Christchurch

Appendix 1