Douglas v Brown HC Auckland Cp185-Sw01

[2001] NZHC 304

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY CP185-SW01

BETWEEN PATRICIA DOUGLAS and STANLEY CLAUDE WARNER of 21A Ardern Road, Whangaparoa, Trustees
Plaintiffs

AND GORDON NEIL BROWN Policeman and KAREN ANNE BROWN his wife both of 58 Tram Valley Road, Swanson
First Defendants

AND JOHN PETER HARRISON Boat Builder and LETITIA MARIA HARRISON his wife both of 52 Tram Valley Road, Swanson
Second Defendants

AND ENRICO FREDERICK van der GRIEND Refrigeration Engineer and JOLIEN WILHELMINA HELENE van der GRIEND his wife both of 71A Metcalf Road, Ranui
Third Defendants

AND PETER THEO AKERBOOM Builder and MICHELLE YVONNE AKERBOOM his wife, both of 54 Tram Valley Road, Swanson
Fourth Defendants

Application: 27 April 2001

Counsel: P F Dalkie for Plaintiff
Jag Lal for Defendants

Judgment: 27 April 2001

ORAL JUDGMENT OF LAURENSON J

[1] This is an application for an interim injunction by the plaintiffs who are the registered proprietors of a property situated near the end of a long accessway which also serves nine other owners. The defendants are four of those other owners. Those same persons are plaintiffs in a separate action commenced in the District Court at Waitakere under NP0316/2000. In this proceeding they are seeking relief against the original owner of the accessway who was the original sub-divider of the land now owned in part by the parties to the present proceeding.

[2] The District Court proceeding was issued in order to resolve a dispute between the original sub-dividing owner and the defendants in this action over matters relating to the accessway. There are arguments as to who is responsible for the formation and maintenance of that accessway and a further argument relating to the nature of the covenant attaching to the sub-divided properties determining the rights to the accessway inter se.

[3] The District Court proceeding has been afoot for some time and unfortunately is indicative of a very bitter situation between the various parties. Against this background the plaintiffs are seeking to develop their property, including basic land formation and the construction of foundations. This will necessitate the movement of heavy vehicles over the accessway. The prospect of this occurring has caused the defendants in the present proceeding considerable concern, to the extent that they have taken some very positive measures to prevent the plaintiffs having access to their property over the accessway. This has included some most unfortunate verbal altercations, but more significantly the placement of a chain over the accessway in the vicinity of Lots 1 and 8.

[4] Stated very simply the plaintiffs submit that there can be little question but that they are entitled to have reasonable access over the accessway to their property. The defendants do not deny this, but contend that the access to be undertaken by the plaintiffs must be such that it will not damage the accessway.

[5] As part of this long-standing dispute (not involving the plaintiffs) it seems that the sub-dividing owner has agreed to effect repairs to the accessway starting on 12 May. It was suggested by the defendants that this being the case, the sensible thing to do was for the plaintiffs to await those repairs and then go about their business on their property. That is not an acceptable answer for the plaintiffs. They are concerned to have the heavy earthworks done while the weather is still holding because, if there is any significant delay, this will cause them, and in particular their children, a good deal of inconvenience and additional cost. They are presently living on the Whangaparoa peninsula and the travelling between there and their home in the Waitakere area is quite difficult to cope with.

[6] There is a further aspect which occurred to me, namely that it is arguably better for the plaintiffs to use the accessway in its present state and take the risk of damaging it further, rather than waiting for the accessway to be repaired and then damaging it.

[7] I invited the parties to consider a practical solution directed to enabling the plaintiffs to have the use of the accessway almost immediately, but subject to restrictions, or alternatively surveillance and assessment, by an independent engineer.

[8] The parties have now agreed upon an independent consulting engineer, namely Harrison Grierson Consultants. Those consultants will

[a] Carry out an inspection of the accessway on Monday 30 April 2001 or as soon as possible thereafter. They will record the position in a report to the parties;

[b] The plaintiffs will then be entitled to use the accessway for the purpose of developing their property;

[c] When this has been completed the consultants will carry out a further inspection and provide an assessment of the then state of the accessway in a report to both parties;

[d] If, as a result of the second inspection, it appears that the plaintiffs’ use has caused damage to the accessway, then the cost of repairing the same is to be met by the plaintiffs. The above matters have been agreed on between counsel for the parties.

[9] Mr Dalkie, for the plaintiffs, then sought an order in terms of the application for interim injunction, the essence of which was to ensure that the plaintiffs would have the unimpeded right to use the accessway to and from their property and that the defendants were to be mandatorily injuncted from preventing, obstructing, impeding or hindering in any way howsoever, the plaintiffs and their duly authorised servants and agents from doing so. Further, that the defendants should be injuncted from entering upon the plaintiffs’ property.

[10] Mr Lal for the defendants submitted that in the particular circumstances the making of an order in these terms would do little to improve relations between the parties.

[11] Having considered these matters in accordance with the principles referred to in Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 40, I am satisfied that the plaintiffs do have an arguable case, namely that they are entitled to access to their property, but subject to them exercising that reasonably and in a manner which will not cause further undue damage to the accessway.

[12] Having viewed the situation in terms of the balance of convenience I have no doubt that this must favour the plaintiffs. Any delay in the erection of their home at this stage is fraught with quite serious implications for them. The formula I have referred to, which the parties have agreed to, accepts the possibility of that damage and the plaintiffs accept the responsibility of paying for it.

[13] Looking at the matter in terms of the overall justice of the situation, I consider that this is really answered by reference to the matters I have referred to in relation to the balance of convenience. In my view it is desirable that the parties know precisely where they stand and that an order as sought by the plaintiffs in (a)(i) and (ii) of the application is appropriate. Those orders will, however, be subject to the conditions as to the agreed appointment of the consultants and the other conditions referred to in paragraph [8] of this decision.

[14] In the circumstances I do not consider that this is an appropriate case for an award of costs. Both parties had an arguable position. They are to be commended for providing a substantial measure of agreement to enable a commonsense compromise at this point.