IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-1008
[2022] NZHC 227
BETWEEN FREEDOM VENTURES LIMITED
Plaintiff
AND
DENISE L’ESTRANGE-CORBET & ORS
Defendants
Hearing: 18 October 2021 Appearances:
JEM Lethbridge for the Applicant/Defendants N Perera for the Respondent/Plaintiff
Judgment:
18 February 2022
JUDGMENT OF ASSOCIATE JUDGE SUSSOCK
This judgment was delivered by me on 18 February 2022 at 4.30pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Martelli McKegg, Auckland Legal Associates, Auckland
FREEDOM VENTURES LTD v L’ESTRANGE-CORBET & ORS [2022] NZHC 227 [18 February 2022]
Introduction
[1]This is an application for strike out, or stay in the alternative, on the basis:
(a)that the plaintiff’s claims have no prospect of success at trial;
(b)that the proceeding was brought for an ulterior purpose and is an abuse of the Court’s processes; or
(c)in the alternative, a stay should be granted pending a resource consent requiring public notification being obtained.
[2] The property at issue in these proceedings is situated at 8 Pitt Street, Auckland Central and is owned by the plaintiff, Freedom Ventures Limited. It is a small 99 m2 site adjoining 8A Pitt Street, which is owned by the applicant defendants (“defendants”).1
[3] Originally Freedom Ventures had static billboards on the street frontage of its building at 8 Pitt Street and on the building’s southern wall between Freedom Ventures and the defendants’ properties.
[4] In December 2019 Freedom Ventures entered into a contract to replace the static billboards with digital billboards. A representative of the company contracted to install the digital billboards contacted the defendants seeking access to install them. Access was refused as resource consent had not yet been obtained.
[5] Freedom Ventures has brought these proceedings seeking orders for reasonable access on the basis that the southern wall is landlocked land and for orders either adjusting the boundary, or for an easement, as it has recently discovered that Freedom Ventures’ building encroaches on the defendants’ property.
1 The first second and third named defendants being trustees of the fourth named defendant trust.
[6] Resource consent for the installation of digital billboards has been applied for but Auckland Council requires it to be publicly notified. Freedom Ventures must pay certain fees before the public notification process proceeds. It has not yet done so.
[7] Freedom Ventures submits that the proceedings have nothing to do with the digital billboards, instead that the proceedings are necessary to resolve access issues for maintenance and for orders in relation to the boundary. The pleading does however refer to digital billboards and the orders sought include orders allowing for the installation and maintenance of billboards. It appears therefore that Freedom Ventures considers that the access and boundary issues need to be resolved first.
[8] The defendants have brought this application in response submitting that either the proceedings ought to be struck out in the absence of any consent to install billboards or they ought to be stayed until consent is…
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- Case
- [2022] NZHC 227
- Decision Date
CaseChat Overview and Summary
The central issue in this case was whether the pleadings disclosed a reasonably arguable cause of action in the absence of consent to install the billboards. If not, should the proceedings be struck out or stayed? The court held that the pleadings did not disclose a reasonably arguable cause of action in relation to the installation of billboards, as there was presently no right to install a billboard. However, the court found that the proceedings should be stayed rather than struck out as the plaintiff may still seek access for existing uses and the boundary issue should be dealt with. The court stayed the proceedings until either resource consent is obtained or further order of the court. The court noted that the stay would also prevent the proceedings being used to force the defendants to consent to the resource consent.
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