First Gas Limited v Gibbs - [2021] NZHC 2794

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2021-443-016

[2021] NZHC 2794

BETWEEN
FIRST GAS LIMITED

Plaintiff

AND

RUSSELL VICTOR GIBBS PARANI JOSEPHINE GIBBS LEIGH JOSEPH HORTON

Defendants

Hearing (AVL): 15 October 2021

Appearances:

L P Wallace for the Plaintiff S J Grey for the Defendants

Mr Stretton in attendance for the Plaintiff
R and M Gibbs in attendance for the Defendants

Judgment:

19 October 2021

JUDGMENT OF GRICE J
(variation of interim injunction)

[1] First Gas has filed a without notice application to vary the terms of an interim injunction granted on 9 July 20211 (as clarified in a minute of 6 August 2021).2 Since that time the application for a permanent final injunction and related declaratory relief has been heard. The judgment is pending.

[2] The without notice variation application was directed to be served and has been dealt with on a Pickwick basis.3 The parties made oral submissions at an audio-visual

1      First Gas Ltd v Gibbs [2021] NZHC 1722.
2      First Gas Ltd v Gibbs HC Te Whanganui-a-Tara | Wellington CIV-2021-443-016, 6 August 2021 (application to rescind order).
3      Such an application is served at the time of filing so that the defendant can be represented in Court when the application without notice is heard. See Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd [1972] 1 WLR 1213, [1972] 3 All ER 384.

FIRST GAS LIMITED v GIBBS [2021] NZHC 2794 [19 October 2021]

conference and the defendants filed an unsworn affidavit by Mr Russell Gibbs. Following discussions at the conference the plaintiff filed an amended application and draft order incorporating amendments discussed at the conference. The defendants filed a further unsworn affidavit by Mr Gibbs following the conference seeking an adjournment of the application.

[3] The original interim injunction permitted the inspection and survey of a “buckle”, or defect, in the Maui high-pressure gas pipeline operated by the plaintiff that runs through the defendants’ farm. The buckle was said to put five metres of the pipeline at risk of failure. An emergency bypass was constructed to divert the gas supply from the area of the buckle. The emergency bypass and diversion of the gas was referred to as the Pariroa Project Phase 1. Failure of the pipeline would have disastrous effects, not only because of safety issues but, also because the pipeline supplies 90 per cent of the gas needs of the North Island. Customers include large commercial users such as the Huntly Power Station and Fonterra plants.

[4] The sealed order/interim injunction allowed for inspection, repair, and related work to be carried out by First Gas along the easement corridor. That is a strip of land 12 metres wide along which the pipeline is laid (the pipeline corridor). It is delineated on the Survey Office diagrams attached to the two pipeline easement certificates (PECs) registered against the relevant Certificates of Title. The schedules to the two PECs describe the corridor…

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: [2021] NZHC 2794
Decision Date: 19 October 2021

CaseChat Overview and Summary

First Gas Limited applied for a variation of an interim injunction that would permit the company to deposit spoil and store equipment and machinery outside the easement corridor of the Maui gas pipeline. The application was opposed by the Gibbs family, who own the land over which the pipeline runs. The application was heard on a Pickwick basis. The original interim injunction permitted the inspection and survey of a buckle, or defect, in the pipeline that runs through the defendants’ farm. The buckle was said to put five metres of the pipeline at risk of failure. An emergency bypass was constructed to divert the gas supply from the area of the buckle. The emergency bypass and diversion of the gas was referred to as the Pariroa Project Phase 1. Failure of the pipeline would have disastrous effects, not only because of safety issues but, also because the pipeline supplies 90 per cent of the gas needs of the North Island. Customers include large commercial users such as the Huntly Power Station and Fonterra plants. The variation of the interim injunction sought by First Gas would enable the commencement of Phase 2 of the Pariroa Project, which would involve the repair of the buckle and the rediversion of gas through the original pipeline. The Gibbs family opposed the application. They said they had offered to meet with First Gas representatives, but the representatives did not show up at the time or place appointed by the Gibbs’, or at the place proposed. In response, First Gas said the offer to meet was on the basis of conditions imposed by the Gibbs; there was no clear agenda or timetable, and short notice was given. The court found that First Gas has an absolute right to store machinery and equipment and deposit spoil, where necessary, for the purposes of the repair of the pipeline as sought by First Gas in the variation to the interim injunction. The variation was granted on the terms set out in the judgment.

Orders