Dunick v Nicholson HC Auckland CIV 2010-404-5426

[2010] NZHC 1469

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-005426

BETWEEN  MARLENE MARIE DUNICK Plaintiff

ANDLEIGH NICHOLSON Defendant

Hearing:         19 August 2010

Appearances: Mr R T Fenton for plaintiff

Mr A Barker for defendant

Judgment:      19 August 2010

(ORAL) JUDGMENT OF LANG J [on application for interim injunction]

Solicitors:

Mr R Fenton, Auckland

Mr A Barker, Auckland

Churton Hart & Divers, Manukau

DUNICK V NICHOLSON HC AK CIV-2010-404-005426  19 August 2010

[1]     The plaintiff seeks an interim injunction preventing the defendant from continuing with construction works at the property situated at 10A Rogers Avenue, Eastern Beach, Manukau.

[2]      The plaintiff and the defendant are neighbours.  They are the occupiers of a single building that has been divided into two flats.  They occupy their respective dwellings pursuant to cross-lease arrangements that provide for exclusive possession of each unit being given to one party.

[3]      The leases contain  a  clause requiring building alterations or construction work by each owner to be the subject of prior written consent by the owner of the other unit.  That consent is not to be unreasonably withheld.

[4]      The defendant has now commenced construction works, apparently without the consent of the plaintiff.   Whether or not that consent has been unreasonably withheld is a matter that the parties intend to have resolved by way of arbitration.  In the meantime, however, the plaintiff seeks an order that no further construction work be carried out.

[5]      Counsel for the defendant appears on a Pickwick basis, given the urgency with which the application has been placed before the Court.  He is not in a position to consent to the application.  He contends that construction should be permitted to continue, at least to the extent that weatherboard cladding should be installed and aluminium joinery windows should also be installed.   He contends that this work will be necessary in any event even if the arbitration is ultimately resolved in favour of the plaintiff.

[6]      I am not prepared to make that order at this stage, because I consider that there is a real risk that the continued construction work will go beyond mere recladding and the installation of window joinery.  There are grounds, in my view, for a concern that the defendant may be trying to present the arbitrator with a fait accompli in the form of completed construction work.

[7]      For  that  reason  I  am  satisfied  that  an  interim  injunction  should  issue preventing the defendant from carrying out any further construction work on her property until further order of the Court.  The defendant will, however, be entitled to take such temporary and reversible steps as may be necessary to render the dwelling at 10A Rogers Avenue, Eastern Beach secure and weathertight.

[8]      I now direct that any documents in opposition to the application are to be filed and served no later than 26 August 2010.

[9]      The proceeding is to be listed for mention in the Duty Judge List on Thursday

2 September 2010 at 10 am.   By that stage counsel hope to be well advanced in having the underlying dispute referred to an arbitrator for resolution.

[10]     The parties are to be encouraged to take whatever steps may be necessary to resolve this dispute without the further assistance of the Court.   It has the clear potential to become a very costly and time-consuming exercise for them.

Lang J