First Gas Limited v Gibbs - [2021] NZHC 2423

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2021-443-16

[2021] NZHC 2423

BETWEEN
FIRST GAS LIMITED

Plaintiff

AND

RUSSELL VICTOR GIBBS, PARANI JOSEPHINE GIBBS AND LEIGH JOSEPH HORTON

Defendants

Hearing: On the papers

Counsel:

L P Wallace for Plaintiff S J Grey for Defendants

Judgment:

15 September 2021

JUDGMENT OF ISAC J

[Leave to defend and adjournment]

Introduction

[1]This judgment addresses two procedural issues:

(a)an application by the defendants for leave to defend the proceeding under r 15.9(3) of the High Court Rules 2016; and

(b)an application by the defendants of 6 September 2021 to adjourn the trial scheduled to commence on 20 September 2021.

FIRST GAS LIMITED v GIBBS, GIBBS AND HORTON [2021] NZHC 2423 [15 September 2021]

[2] On 7 September 2021 I advised the parties that it was not appropriate to adjourn the fixture if leave was granted.1 On 8 September 2021 I granted leave to defend the proceeding.2

[3]This judgment sets out my reasons for both orders.

Background

[4] On 22 April 2021, the plaintiff, First Gas, commenced proceedings against the Gibbs Family Trust. First Gas advances one cause of action in nuisance. It seeks declarations, and a permanent injunction, relating to various claimed rights of access to and use of land owned by the Gibbs Family Trust. Those rights are said to arise from pipeline easement certificates issued under the Petroleum Act 1937.

[5] In addition to a permanent injunction, First Gas sought an interim injunction enabling it to commence exploratory works intended to effect a repair to a buckle in the Maui gas pipeline. I granted First Gas an interim injunction on 9 July 2021.3

Defendants’ application for leave to file a defence

Background

[6] The early procedural history of the case is set out in the appendix to the interim injunction decision. As noted in the appendix, there has been something of a history of non-compliance by the defendants with the requirements of the Rules. First, there were difficulties effecting personal service of proceedings on Mr Russell Gibbs, one of the three defendant trustees.4

[7] Then, six weeks after proceedings had been served on the other two defendants (Ms Gibbs and Mr Horton), Mr Russell Gibbs filed a notice of opposition. He also

1      Minute (No 4), 7 September 2021.
2      Minute (No 5), 8 September 2021 at [4]–[6].
3      First Gas Ltd v Gibbs & Ors [2021] NZHC 1722 [interim injunction decision].
4      In a recent memorandum Mr Gibbs takes issue with First Gas’s attempts to effect personal service on him, and suggests the Court has been misled on that question. It is unnecessary to consider that issue further because, without doubt, two of the three trustees, one of whom appears to be a family member of Mr Gibbs, was served personally on 4 May 2021. Mr Gibbs has never alleged that he was unaware of the proceedings due to a lack of personal service.

filed a memorandum seeking an extension of…

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 2423
Decision Date: 15 September 2021

CaseChat Overview and Summary

In the High Court of New Zealand, First Gas Limited, a plaintiff, filed proceedings against the Gibbs Family Trust, represented by Russell Victor Gibbs, Parani Josephine Gibbs, and Leigh Joseph Horton. The plaintiff sought declarations and a permanent injunction related to claimed rights of access to and use of land owned by the defendants, which arose from pipeline easement certificates issued under the Petroleum Act 1937. The defendants filed an application for leave to defend the proceeding under r 15.9(3) of the High Court Rules 2016 and sought an adjournment of the trial scheduled to commence on 20 September 2021.

The court had to decide whether to grant the defendants leave to file a defence and, if so, under what conditions. The court also had to determine whether the trial should be adjourned. The court found that the defendants had a substantial ground of defence, but their delay in filing the defence was not reasonably explained. The court was also concerned that a delay in the trial could result in irreparable injury to the plaintiff and affect the security of gas supply to the North Island. The court granted leave to file a defence subject to conditions, including a priority fixture and a truncated timetable. The court declined to adjourn the trial.

The court's decision was based on the need to balance the competing interests of the parties and the importance of ensuring a secure gas supply to the North Island. The court also noted that the defendants had demonstrated a capacity to engage with the proceeding when they chose to do so, and that the legal and factual issues for consideration were narrow. The court concluded that the defendants' application for leave to file a defence was granted subject to conditions, and their application to adjourn the trial was declined.

Orders