Corboy v Pietersma
[2025] NZHC 3391
•7 November 2025
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2025-463-000037
[2025] NZHC 3391
UNDER Section 334 of the Property Law Act 2017 and Part 20 of the High Court Rules 2016 IN THE MATTER OF
an appeal against a judgment of the District Court
BETWEEN
MICHAEL ANTHONY CORBOY and JUDITH MAUGHAN CORBOY
Appellants
AND
PAULA ANNE PIETERSMA
Respondent
Hearing: 3 November 2025 Appearances:
S T Scott for Appellants
No appearance for Respondent (abiding Court decision)
Judgment:
7 November 2025
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 7 November 2025 at 4 pm
Registrar/Deputy Registrar Date……………………………..
Counsel/Solicitors:
S T Scott, Tauranga
Rejthar Stuart Law, Tauranga J K Mahuta-Coyle, Wellington Langley Twigg, Napier
CORBOY v PIETERSMA [2025] NZHC 3391 [7 November 2025]
[1] The plaintiffs, Michael Corboy and Judith Corboy (the Corboys), appeal the order of Judge J P Geoghegan made in the District Court in Tauranga in February 2025 dismissing their application for an order for the removal of trees from the property of the defendant, Paula Pietersma. They say the Judge exceeded his powers under the District Court Rules 2014 by making the order without giving them an opportunity to be heard and by directing the sealing of the Dismissal Order without any application from a party.
[2] Ms Pietersma took no part in the hearing of the appeal because she abided the Court’s decision.
Relevant background
[3] The Corboys and Ms Pietersma have adjacent properties at 21 and 19 Bryan Road, Ohiwa Beach, east of Opotiki. The Corboys reside at No 21, which overlooks Ms Pietersma’s property at No 19 Bryan Road. Ms Pietersma resides ordinarily in Napier but spends time at the Bryan Road property. An easement runs along the boundary of the two properties in which an underground drain and a surface swale were built to facilitate water runoff.
[4] In December 2022, the Corboys applied in the District Court in Tauranga for orders under ss 333–335 of the Property Law Act 2007 and r 20.13 of the District Court Rules, directing the removal or trimming of trees on Ms Pietersma’s property. The trees, principally King palms and Bangalow palms, were planted by Ms Pietersma and her former husband along their side of the easement area.
[5]The application was opposed by Ms Pietersma.
[6] Mr Corboys and Ms Pietersma each filed affidavits in support of their positions:
(a)Mr Corboys says the trees unreasonably obstruct the Corboys’ view from their property and unduly shade their property, thereby interfering with their ability to access light and to grow plants or crops. They say
the trees have significantly decreased the value of their property. They also say that, despite their efforts to negotiate an agreed resolution with Ms Pietersma, they have been unable to do so.
(b)Ms Pietersma says she planted the trees to afford privacy to her property. She acknowledges that some of the trees may adversely affect the Corboys’ view but disputes the scale and impact of adverse effects alleged by the Corboys. She also says there are other reasons for the difficulties that have arisen between herself and the Corboys. Ms Pietersma says further that she has been prepared to agree to a resolution of the tree issue provided the Corboys agree to meet the costs of any work involved.
History of the proceeding
[7] The following account is based on a chronology prepared by counsel for the Corboys and documents placed before the Court. There are gaps in the account which, perhaps, reflect changes in representation for both sets of parties.
[8] A first case management conference set down for 20 April 2023 was vacated by consent after the parties’ counsel, by joint memorandum, sought an adjournment for eight weeks to enable the parties to explore alternative dispute resolution options.
[9] Another case management conference set down for 29 September 2023 was also vacated by consent after counsel had filed a joint memorandum seeking a judicial settlement conference. On 26 September 2023, Judge W Lawson directed that a judicial settlement conference be set down. However, because of a lack of available judges at the Opotiki District Court, to which the matter had been directed for hearing, no further steps were taken until early 2023.
[10] A judicial settlement conference and a site visit were set down for 7 May 2024. However, on 6 May 2024, counsel, by joint memorandum, advised that the parties had been negotiating and that, given the extent of the negotiations and the remaining issues between them, counsel agreed the judicial settlement conference should be vacated.
[11] On the same day, Judge P R Spiller vacated the judicial settlement conference and directed, in accordance with what had been proposed in the joint memorandum, that counsel either file a notice of discontinuance or a joint memorandum seeking trial directions by 17 May 2024.
[12] In the event, there was no settlement, no trial directions and, it appears, no memoranda filed in Court. Apparently, the parties were still negotiating. Emails exchanged between counsel and the Registry show that dates for review by the Registrar were set down for 13 August 2024 and then, by agreement, adjourned to 30 September 2024. What happened in the latter months of 2024 is not apparent from the material filed in this Court. It appears no memorandum or other documents were filed in the District Court.
[13] On 20 January 2025, the Court Registrar sent counsel an email seeking, by 31 January 2025, a memorandum of settlement, a notice of discontinuance and costs sought. On the same day, counsel for the Corboys forwarded the Registrar’s email to counsel for Ms Pietersma, who, it appears had been appointed recently.
[14] On 31 January 2025, counsel for Ms Pietersma confirmed to the Registrar that he was acting for Ms Pietersma and advised he was still in the process of obtaining instructions regarding a possible settlement. He asked that the matter be placed on the Registrar’s review list in two weeks’ time for further directions.
[15] On 21 February 2025, the Registrar advised counsel the matter had been referred to a Judge for further directions. The email noted the direction on 6 May 2024 that counsel were to file either a notice of discontinuance or a joint memorandum seeking trial directions by 17 May 2024 and advised:
The Claim is dismissed.
A copy of the sealed order is attached.
The case is now closed.
[16] The order, sealed on 20 February 2025, recorded the order made by Judge Geoghegan that “The Claim is dismissed.”
Relevant District Court Rules
[17]Rule 7.33(2) provides:
(2)If an order determining an application is made in the absence of a party, a Judge may, if the Judge thinks it just to do so, recall the order at any time before a formal record of it has been drawn up and sealed.
[18]Rule 7.36 provides:
7.36 Making of interlocutory orders
(1)A Judge may make any interlocutory order that—
(a)is provided for in these rules; or
…
An interlocutory order may be made—
(a)on the interlocutory application of a party; or
(b)on a Judge’s own initiative.
(3)Before making an order under subclause (2)(b), the Judge must give the parties an opportunity to be heard.
[19]Rule 15.1 relevantly provides:
15.1 Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
…
Submissions by counsel for the Corboys
[20] Mr Scott, for the Corboys, submits that the parties had previously sought to adjourn the proceeding to enable settlement discussions to proceed. He says such
discussions were appropriate because they would avoid the need for a judicial determination and any site visit.
[21] Mr Scott says that, rather than ordering the adjournment sought, the Judge struck out the proceeding in its entirety without first providing the parties with an opportunity to be heard, as required by r 7.36(2). Mr Scott also questions the Judge’s direction that his order be sealed without any party having applied for sealing of the order. He notes that sealing meant it was not open to the parties to seek a recall of the order under r 7.33(2).
[22] Mr Scott refers to this Court’s decision in in Deliu v Hong, in which Courtney J set aside an Associate Judge’s decision striking out a cause of action because an order striking out a proceeding was an interlocutory decision and the Associate Judge did not provide the parties an opportunity to be heard as required by the High Court Rules.1
Discussion
[23] Judge Geoghegan gave no reasons for his decision. It is not hard to infer, however, that the Judge dismissed the Corboys’ application because he considered the parties had not paid sufficient attention to the Court’s processes. There had been no formal communication with the Court since the joint memorandum of 6 May 2024 and no formal compliance with the orders made that day.
[24] The Judge’s decision is effectively a decision to strike out the Corboys’ proceeding. The Judge certainly had the power to take such action under r 15.1 if he considered the proceeding was frivolous or vexatious or was otherwise an abuse of the Court’s process.
[25] However, it is well-established that the jurisdiction to strike out is to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material.2 In the present case, it is far from clear the Judge had the requisite material to strike out the proceeding.
1 Deliu v Hong HC Auckland CIV-2010-404-006349, 21 December 2011, at [7] and [35(a)].
2 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
[26] While it is understandable the Judge may have been irritated that there had been insufficient attention to Court orders, it does not appear there was not any direct flouting of those orders. While the directions made on 6 May 2024 were not complied with, it is apparent from the emails exchanged between the Registry and counsel in August 2024 that the Court was aware settlement negotiations were continuing, albeit slowly. That message was reiterated in January 2025. In these circumstances, it is difficult to understand why the Judge decided to strike out the proceeding. In any event, I am satisfied the decision was in error, even leaving aside the requirements of r 7.36(2).
[27] As noted above, in Deliu v Hong, Courtney J proceeded on the basis that a decision to strike out a proceeding is an interlocutory decision, even if it has the effect of disposing of the proceeding. I note, however, that in Siemer v Stiassny, another decision to which Mr Scott refers, Harrison J for the Court of Appeal stated that an order striking out a proceeding was final and not interlocutory.3 Whether that statement was specific to the proceeding before the Court, which concerned an attempt to relitigate issues that had already been decided, or was of more general application is not clear.
[28] In any event, and like Courtney J, I proceed on the basis that a decision to strike out a proceeding is an interlocutory decision. For that reason, the Judge should not have struck out the proceeding at his own initiative without first giving the parties an opportunity to be heard. For that reason, his order cannot stand. Moreover, even if the order dismissing the Corboys’ application is more properly considered to be final rather than interlocutory, it was in error—for the reasons already stated. Either way, it should be set aside.
Result
[29]The appeal is allowed.
[30] The order dismissing the Corboys’ application for an order for the removal of trees from the property of Ms Pietersma is set aside. The proceeding is reinstated.
3 Siemer v Stiassny [2011] NZCA 466, at [6].
[31]Costs are reserved pending the outcome of the proceeding.
G J van Bohemen J
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