Dean v Collins

[2021] NZHC 813

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2021-488-0037

[2021] NZHC 813

BETWEEN

ROBERT JAMES DEAN and GLENYSS BEVERLY DEAN
Plaintiffs

AND

LISETTE SUSAN COLLINS

Defendant

Hearing:	On the papers
Counsel:	D T Horton for the plaintiffs
Date of judgment:	15 April 2021

JUDGMENT OF JAGOSE J

[Without notice application for interim injunction]

This judgment was delivered by me on 15 April 2021 at 11.00am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

D T Horton, Barrister, Auckland Andrew Seton Law, Auckland

DEAN v COLLINS [2021] NZHC 813 [15 April 2021]

[1]    As duty judge, I have the plaintiffs’ (the “Deans”) without notice application for interim relief, seeking the defendant (“Ms Collins”) cease work constructing a dwelling in Russell’s Uruti Bay Estate subdivision, in conjunction with the Deans’ 13 April 2021 claim Ms Collins demolish and/or remove the dwelling under construction.

Background

[2]    Ms Collins’ work is contended to be in breach of a restrictive covenant, as to “the nature and the type of construction to be permitted in the subdivision”. The covenant appears to apply to each lot within the subdivision in favour of all other lots. The Deans and Ms Collins are each registered proprietors of lots in the subdivision.

[3]    The substantive claim pleads the consented 49m2 monopitch-roofed dwelling to be too small, and lacking both architectural complexity and garaging, all in breach of the covenant’s condition 7. Condition 7 stipulates a range of requirements as to minimum areas (“a ground area of at least 100m2”), shapes (“a minimum of three hips and/or gables and two valleys in the roofline”) and construction (“an attached garage or garaging integrated with the dwelling”) on the property.

[4]    The specifics of the alleged breach are not directly in evidence, which only asserts “the house does not comply with the requirements of the covenant”. The Deans’ exhibited 12 February 2021 correspondence with the Far North District Council relies on the Council’s advice — in connection with its 17 February 2020 decision, issuing consent for construction of a dwelling on Ms Collins’ property — “this development breaches condition 7” of the covenant. Inferences are to be drawn from the terms of Ms Collins’ resource consent application and photographs annexed to Mr Dean’s affidavit. No adverse effect is claimed by the Deans, who can see Ms Collins’ construction from their property, although Mr Dean explains they and their neighbours “are worried about any potential devaluation of our properties”.

Discussion

[5]    I may determine an application can properly be dealt with without notice only if I am satisfied, here, requiring the Deans to proceed on notice would cause undue

delay or prejudice to them, or the interests of justice require the application to be determined without serving notice of it.1

[6]    The Deans’ counsel, Desley Horton, explains the application is brought urgently without notice because, “[while] building continues, Ms Collins incurs further expense”. Therefore further work should be halted “to reduce the prejudice to Ms Collins should she be required to demolish or remove it.” And she says Ms Collins has not been responsive to the Deans’ 24 February 2021 request for her lawyers’ contact details, and was not seen in the subdivision “for some time” subsequently. Ms Horton leaves open if Ms Collins’ absence was consequential on the Deans’ objection.

[7]    None of that means the Deans may be caused undue delay or prejudice by service of the application on Ms Collins, or the interests of justice require the application’s determination without notice, and none is claimed:

(a)the express prejudice claimed is to Ms Collins;

(b)the 24 February 2021 request was in the context of the Deans refusing to provide particular details Ms Collins sought of them in responding to their original communication to the Council. Thus she only was mutually non-responsive. Ms Collins had promptly, if negatively, responded to the Deans’ 12 February 2021 demand she rectify the breaches;

(c)any urgency is undermined by the two months that have elapsed since the Deans raised the issue with the Council (despite the Council’s prior advice expressly noting “Council does not enforce private land covenants, and this does not affect Council approving [the] plans”), and the five months since the Deans obtained a copy of the Council’s decision containing that advice in conjunction with its observation of non-compliance with the covenant;

1      High Court Rules 2016, r 7.46(3).

(d)that delay is not obviated, but exacerbated, by the Deans’ observation of construction’s temporary cessation or comprehension of Ms Collins’ uncontactable absence, especially given their 12 February 2021 advice to the Council of “[l]egal proceedings that have been initiated against [Ms Collins]” (emphasis added); and

(e)Ms Collins’ personal contact details plainly are available to the Deans from the exhibited correspondence.

Doubtless a requirement for service will defer judicial determination of the matter, but that is not undue; rather, it is necessary and orthodox to ensure Ms Collins has opportunity to respond. And by such she is on notice also of the consequences the Deans seek, thus having opportunity to mitigate their further impact on her. That is what the interests of justice require in the present circumstances. In those circumstances, I have some difficulty seeing a basis for counsel’s certification the grounds for without notice relief are made out here.

Result

[8]    I am not satisfied the application can properly be dealt with without notice.    I therefore:

(a)direct the proceeding (including the application, and this judgment) be served on Ms Collins, including at the electronic address for service stipulated on her resource consent application;

(b)adjourn the application’s determination until the application has been served on Ms Collins, to be advised to the registry; and

(c)direct the registry to call the application in the first available duty judge’s civil list after advice of service on Ms Collins, for timetabling directions leading to an expedited hearing.

— Jagose J