First Gas Limited v Gibbs - [2022] NZHC 713

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2021-443-016

[2022] NZHC 713

BETWEEN
FIRST GAS LIMITED

Plaintiff

AND

RUSSELL VICTOR GIBBS PARANI JOSEPHINE GIBBS LEIGH JOSEPH HORTON

Defendants

Hearing: 31 March 2022 (teleconference)

Appearances:

L P Wallace and J Atkin for the Plaintiff M Gibbs for the Defendants

Judgment:

8 April 2022

JUDGMENT OF GRICE J

(Without notice (Pickwick) application for stay of enforcement pending appeal)

[1] This is an application by the defendant trustees (the Trust) for a stay of execution of the judgment given in this matter on 3 December 2021, including the permanent injunction and declarations made in that judgment, pending an appeal to the Court of Appeal.1

[2]The plaintiff opposes the stay.

[3] This matter has been brought on as an urgent application at short notice at the request of the Trust. I have dealt with it as a without notice application, but First Gas Ltd (First Gas) has been served and appeared through counsel. It has filed a notice of

1 First Gas Ltd v Gibbs [2021] NZHC 3309 [the Decision].

FIRST GAS LIMITED v GIBBS [2022] NZHC 713 [8 April 2022]

opposition and submissions but has been unable to file the three affidavits referred to in its notice of opposition. I advised the parties of the result of the without notice application at the teleconference on 31 March 2022. This is the reasons judgment.

Background

[4] In my substantive decision of 3 December 2021 (the Decision), I granted a declaration in favour of First Gas concerning its rights to enter the Trust land and carry out repairs on the Maui Pipeline.2 I also issued a permanent injunction prohibiting the Trust from restricting, obstructing or otherwise interfering with the plaintiff’s access rights under the relevant easements and authorisations and prohibiting them from taking any action that restricted or interfered with First Gas’ rights to enter onto the land for the purposes of, among other things, repairing or operating the Maui Pipeline.3

[5] The central issue in the case was the interpretation of the statutory provisions allowing entry on land on which the pipeline was laid for the purposes of repair. The focus was on whether First Gas’ repair and maintenance rights were limited so it could not use as of right land beyond the 12 metre-wide easement strip in the course of its repair and maintenance work on the pipeline. I found that when First Gas was repairing the pipeline and carrying out any other authorised works and for entry and egress, storage and depositing of machinery and equipment, as well as depositing spoil incidental to the works, it was entitled to access and to use the land described in the easement certificates beyond and not limited to the 12 metre strip of the pipeline corridor. I also found there was no arrangement or agreement applying to future works on the pipeline, nor were First Gas’ rights and powers conditional on its working in consultation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 713
Decision Date: 8 April 2022

CaseChat Overview and Summary

In the High Court of New Zealand, First Gas Limited sought a declaration concerning their rights to access the land owned by the Gibbs Trust to carry out repairs on the Maui Pipeline. The Trust, represented by Ms Gibbs, opposed the application and appealed the decision. In this appeal, the Trust sought a stay of execution of the judgment pending the outcome of the appeal. The primary issue before the court was whether to grant a stay of execution pending the determination of the appeal. The court considered various factors, including the potential impact on the parties, the novelty and importance of the questions involved, and the overall balance of convenience. The court declined to grant the stay on a without notice basis, as First Gas would continue to require access to the pipeline for ongoing maintenance, repair, and remediation. Additionally, the court noted that a stay would likely cause a deadlock over access to the pipeline. The court set a timetable for the hearing of the interlocutory application for a stay and reserved costs on the application. The application for contempt and the application to adduce further evidence were to be dealt with separately.

Orders