Freedom Ventures Limited v L'Estrange-Corbet - [2022] NZHC 227

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…

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 227
Decision Date: 18 February 2022

CaseChat Overview and Summary

Freedom Ventures Limited, the owner of a property at 8 Pitt Street, Auckland, brought proceedings against Denise L’Estrange-Corbet and others, who own the property at 8A Pitt Street, seeking access to the defendants' property to install digital billboards on the southern wall of the plaintiff’s building. The defendants applied for the proceedings to be struck out or stayed. The court held that parts of the plaintiff’s pleadings did not disclose a reasonably arguable cause of action. 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. The court invited the parties to confer on costs and directed that if they could not agree, the defendants could file a memorandum of no more than five pages within 15 working days of the judgment and the plaintiff a further 10 working days.

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.

Orders