Freedom Ventures Limited v L'Estrange-Corbet
[2022] NZHC 227
•18 February 2022
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 obtained.
Issue
[9] The issue is therefore whether the pleadings disclose 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?
Relevant legal principles
[10] The strike out application is brought pursuant to r 15.1(1)(a) and 15.1(1)(d) of the High Court Rules 2016.
[11]High Court Rule 15.1 provides:
15.1 Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
(2)If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3)Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.
(4)This rule does not affect the court’s inherent jurisdiction.
[12] The strike-out principles are well settled. The Supreme Court in Couch v Attorney-General2 endorsed the decision of the Court of Appeal in Attorney-General v Prince & Gardner which set out the following principles:3
(a)a striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true;
(b)the causes of action must be so clearly untenable that they cannot possibly succeed;
(c)the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material; and
(d)the fact that the application to strike out raises difficult questions of law does not exclude jurisdiction.
[13] The Defendants advance two grounds for strike-out, that the pleadings disclose no reasonably arguable cause of action (r 15.1(1)(a)) and that the proceeding is otherwise an abuse of process (r 15.1(1)(d)).
[14] The circumstances in which proceedings may amount to an abuse of process are varied.4 The defendants submit that these proceedings are an abuse of process as they have been brought with an improper motive and/or brought with an improper motive aimed at obtaining a collateral advantage.5 In relation to the filing of proceedings with an improper motive, the authors of McGechan on Procedure refer to Williams v Spautz6 where the High Court of Australia referred to the following statement of principle by the English Court of Appeal in Re Majory:7
2 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ and Anderson J.
3 Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA) at 267.
4 Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR at [61].
5 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].
6 Williams v Spautz (1992) 174 CLR 509 (HCA) at 528 and 536, as cited in Andrew Beck and others (eds) McGechan on Procedure (online ed, Thomson Reuters) at [HR15.1.05].
7 Re Majory [1955] CH 600 (CA) at 623–624.
… court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of a court by proceedings he has abused.
[15] In New Zealand the Court of Appeal discussed the policy reason why such abuse cannot be countenanced in Moevao v Department of Labour:8
The concern is with conduct on the part of the litigant in relation to the case which unchecked would strike at the public confidence in the Court’s processes and so diminish the Court’s ability to fulfil its function as a Court of law.
[16] In the alternative to its strike-out application, the defendants apply to stay the proceeding pursuant to r 15.1(3) or the court’s inherent jurisdiction “pending any decision by Auckland Council or any other relevant territorial authority of the consent application for either a static or digital billboard.”9
[17] In Danone Asia Pacific Holdings Pte Ltd v Fonterra Co-operative Group Ltd Venning J held that the Court retains jurisdiction to stay a proceeding “including for reasons of sensible case management” on the basis that:10
[p]arties do not enjoy an unfettered right to access to the Courts; rather, the Court is entitled to impose procedures that are appropriate in the circumstances having regard to the nature and content of the litigation as a whole.
[18] Venning J emphasised that a decision to stay “should only be made in rare and compelling circumstances where the costs, convenience and the interests of justice (including consideration of the Danone plaintiffs’ right to access the Court) weigh in favour of a stay.”11
8 Moevao v Department of Labour [1980] 1 NZLR 464 (CA) at 482.
9 Interlocutory Application on Notice for dismissing or staying the proceeding dated 2 September 2021 at [2.2].
10 Danone Asia Pacific Holdings Pte Ltd v Fonterra Co-operative Group Ltd [2014] NZHC 1681 at [54].
11 At [39].
[19] In Danone, the reason for the stay was the existence of an arbitration in progress with which there was substantial overlap from a claims and factual perspective, although not involving all of the same plaintiffs or the defendant, Fonterra Co-operative Group Limited.
[20] In DE & KM Gale Limited v WK Strawbridge Limited Churchman J applied the reasoning from Danone to stay a proceeding brought by a company that had entered into the business debt hibernation scheme.12 The applicant company, DE & KM Gale Limited, had filed an application to set aside a statutory demand served by WK Strawbridge Limited. Schedule 13 of the Companies Act 1993 provides for the COVID-19 business debt hibernation scheme, and includes at cl 40 that during the period of business debt hibernation, no proceedings against the entity may be begun or continued in connection with a debt except in the specified circumstances. The respondent applied to stay the proceeding because proceedings by it in connection with the debt could not be brought or continued. Churchman J held that it was both in the interests of justice and sensible case management for the stay to be granted.
[21] I now set out a brief summary of the factual background to the present case before considering the pleadings.
Factual background
[22] Prior to February 2020, Freedom Ventures operated static billboards on its property, one on the southern side and one on the street frontage of the building on Pitt Street. The static billboards were managed through a company, QMS Media (“QMS”).
[23] On 17 December 2019, Freedom Ventures entered into a contract with Digital Signs Limited to supply and erect two digital screens on the street frontage and southern side of 8 Pitt Street.
[24] On 23 February 2020, Digital Signs applied on behalf of Freedom Ventures for a resource consent to exchange the static billboards at 8 Pitt Street for digital billboards.
12 DE & KM Gale Ltd v WK Strawbridge Ltd [2021] NZHC 2610.
[25] Ms L’Estrange-Corbet’s (the first named defendant) evidence is that Mr Jacques of Digital Signs contacted her on 26 February 2020 by telephone and advised that:
(a)he was contacting her on behalf of Freedom Ventures to replace two static billboards with two digital billboards “like-for-like”;
(b)he needed access over the defendants’ property to install the billboard on the southern wall;
(c)the work would take two to three days; and
(d)there was a resource consent for the digital billboards.
[26] During the telephone call Ms L’Estrange-Corbet declined access on behalf of the Trust as she was concerned that resource consent had not been obtained (despite Mr Jacques’ alleged insistence that it had been).
[27] On 27 February 2020, Mr Jacques sent a letter to Ms L’Estrange-Corbet repeating the request for access and referring to the fact that access had previously been sought and given to paint Freedom Ventures’ building. The letter attached photographic impressions of the proposed digital billboards showing billboards on the street frontage and southern boundary which were larger than the static billboards that were then in place.
[28] Ms L’Estrange-Corbet responded on the same day confirming that she did not give consent to the installation of digital billboards.
[29] Further email communications were exchanged between Mr Jacques and Ms L’Estrange-Corbet in which Mr Jacques advised, amongst other things:
(a)his business would be affected if access was not given to erect the digital billboards;
(b)“it looks like we’re going to end up in Court with you after all”;
(c)resource consent had been applied for to convert the static billboards to digital;
(d)Ms L’Estrange-Corbet could “expect to stand in front of a High Court Judge and explain why your property rights exceed the reasonable needs of a neighbour built right to the boundary”; and
(e)“if this is not resolved today via a proper Deed of Lease (where you will have control over the terms), then you can expect a lawyer’s letter Monday”.
[30] On 28 February 2020, a trespass notice was issued on behalf of the Trust against Mr Jacques of Digital Signs and any other contractor associated with him.
[31] There was then correspondence between Mr Farnworth, the director of Freedom Ventures, and Ms L’Estrange-Corbet with Mr Farnworth continuing to seek to reach an agreement for access.
[32] On 16 March 2020, Ms L’Estrange-Corbet was advised by the Auckland Council officer dealing with the resource consent application that there was no resource consent for the digital billboards and that the application was still being considered.
[33] On 20 March 2020, the static billboards were removed by QMS as Freedom Ventures had cancelled its agreement with QMS.
[34] On 14 April 2020, Mr Farnworth emailed Ms L’Estrange-Corbet and the Body Corporate manager of the other neighbouring building trying to encourage them both to agree to support the application for resource consent for the digital billboards.
[35] On 2 June 2020, solicitors acting for Freedom Ventures sent a letter attaching a draft statement of claim and advising it would be filed in the High Court if agreement was not reached. The final paragraph of the letter records that they had become aware that Freedom Ventures’ building is encroaching on the Trust’s land and that this would need to be legitimised at the same time. A copy of the draft statement of claim is not
attached to the letter in the affidavit so it is not clear whether the draft included a claim relating to the position of the boundary.
[36] On 1 July 2020 this proceeding was filed pleading two causes of action. The first applies for orders for reasonable access in respect of the property on the basis that it is landlocked. The pleading does not expressly seek an order pursuant to s 327 of the Property Law Act but the section is referred to in the heading and it appears that it is the basis for the first claim. When a Court is considering a strike out application, if there is a defect in a pleading that can be cured by amendment which the plaintiff is willing to make the Court will generally allow the amendment.13 I therefore proceed on the basis that the pleading will be amended on this basis.
[37]The reasonable access sought in the first cause of action is:
(a)to occupy the equivalent of one car parking space, situated on the most north western corner of 8A Pitt Street, on an “as required” basis, where the plaintiff provides 48 hours’ notice in writing to the defendant of an intention to use that space, and the space is only used for the necessary installation, repair and maintenance, and removal of any billboard operated on the southern wall of the plaintiff’s building; and
(b)providing such access does not exceed 10 per cent of the available annual usage of such car parking space; and
(c)to access such other parts of the open front yard of 8A Pitt Street for the purpose of necessary maintenance and repair to the southern wall of the building situated at 8 Pitt Street as is reasonably required.
[38] A further order is sought that the plaintiff pay the defendants the sum of $17.39 plus GST per month in consideration of such access being granted. This sum appears to have been calculated on the basis that the plaintiff pays $173.91 plus GST per month to lease a carpark at 6 Pitt Street.
13 Marshall Futures Ltd v Marshall [1992] 1 NZLR 316, (1991) 3 PRNZ 200.
[39] The second cause of action seeks orders in respect of a wrongly placed structure. The cause of action refers to s 322 of the Property Law Act but s 322 only sets out who may apply for relief. Section 323 is the operative provision under which the Court may make orders. As for the first cause of action, I proceed on the basis that the pleading is amended. In this second cause of action, the plaintiff seeks orders:
(a)adjusting the boundary between 8 Pitt Street and 8A Pitt Street so that the existing building and position of the billboard is within the property of 8 Pitt Street; or,
(b)in the alternative, an easement or encroachment licence sufficient to legitimize the current situation, on such terms as the Court considers just and equitable.
[40] On 5 August 2020, Auckland Council issued an interim decision on the resource consent application for the digital billboards requiring it to be publicly notified. The decision outlined objections from a number of neighbouring properties and other parties.
[41] By the time of the hearing of this application, public notification had not been progressed as the plaintiff had not paid the required fees.
First cause of action – reasonable access to landlocked land
[42] Section 327 of the Property Law Act 2007 provides that the owner or occupier of landlocked land may apply to a court for an order under s 328(1) granting reasonable access to such land.
[43] Section 326 of the Property Law Act defines “landlocked land” as meaning “a piece of land to which there is no reasonable access”. Section 326 further defines “reasonable access” as meaning:
physical access for persons or services of a nature and quality that is reasonably necessary to enable the owner or occupier of the land to use and enjoy the land for any purpose for which it may be used in accordance with any right, permission, authority, consent, approval, or dispensation enjoyed or granted under the Resource Management Act 1991.
[44] In MacLaurin v Hexton Holdings Ltd the Court of Appeal found that where a party had not gained a resource consent prior to seeking an order, the word “right” in the definition of “reasonable access” should not be read as meaning “a right to apply for a resource consent under the Resource Management Act”.14 Put another way, the word “right” should not be read as meaning a right to apply for a right. The Court held that “[i]t behoves the landowner first to see whether he or she can persuade the consent authority to grant that resource consent”.15 The Court of Appeal therefore confirmed that the applicant should have pursued to finality its application to the Environment Court for resource consent before applying for access rights.16
[45] Section 328 provides the Court with powers to vest any other piece of land in the owner of the landlocked land or an easement over that other piece of land.
[46] Section 329 sets out matters which the Court must consider in determining whether an order for reasonable access ought to be made:
329 Matters court must consider in determining application for order for reasonable access
In determining an application for an order under section 328, the court must have regard to—
(a)the nature and quality of the access (if any) to the landlocked land at the time when the applicant purchased or otherwise acquired the land:
(b)the circumstances under which the land became landlocked:
(c)the conduct of the parties, including any attempts they have made to negotiate reasonable access to the landlocked land:
(d)the hardship that would be caused to the applicant by the refusal of an order, in comparison with the hardship that would be caused to any other person by the making of an order:
(e)any other relevant matters.
Does the current pleading of the first cause of action disclose a reasonably arguable cause of action?
[47] The prayer for relief in the current pleading of the first cause of action relates largely to reasonable access for the installation of billboards. Paragraph B(c) does
14 MacLaurin v Hexton Holdings Ltd [2008] NZCA 570, (2008) 10 NZCPR 1 at [20].
15 At [33].
16 At [44].
refer to access for the purposes of necessary maintenance and repair to the southern wall of the building situated at 8 Pitt Street, but this appears to be secondary to the main reason for access orders being sought.
[48] At this stage there is no right to have a billboard, whether static or digital, on the plaintiff’s property. Any existing use right has expired pursuant to s 10 of the Resource Management Act as it is more than 12 months since the billboard was removed.17 Counsel for the plaintiff submits that the only reason that this time has expired is because the defendants prevented access to reinstall the billboard. But one of the static billboards is on the street frontage on Pitt Street where there is no access issue yet that billboard was not reinstated.
[49] Mr Farnworth in his affidavit in support for the plaintiff says that now the existing use rights have lapsed, the plaintiff has until March 2022 to apply to the Auckland Council under s 10(2)(a) of the Resource Management Act for an extension of the existing use rights. Such an extension is not automatic, with s 10(2) preventing reinstatement unless the Council is satisfied that the effect of the extension will not be contrary to the objectives and policies of the district plan and the applicant has obtained approval from every person who may be adversely affected by the granting of an extension, unless in the Council’s opinion it is unreasonable in all the circumstances to require the applicant to obtain every such approval.
[50] That part of the pleading relying on the instalment of either static or digital billboards, therefore, does not disclose a reasonably arguable cause of action because there is presently no right to install a billboard. I am bound by the dicta of the Court of Appeal in MacLaurin v Hexton Holdings Ltd18 as referred to above.
[51] I consider the position in respect of the second cause of action before determining the appropriate orders.
17 Resource Management Act 1991, s 10(2).
18 MacLaurin v Hexton Holdings Ltd, above n 14.
Second cause of action – structure in the wrong place
[52] Section 322 of the Property Law Act provides that certain parties may apply to the Court for relief for a wrongly placed structure. The plaintiff in this case is a person who has an interest in the wrongly placed structure, being the owner of the building partly on the defendants’ land, falling within s 322(1)(d).
[53] Section 323 provides the Court with the power to grant relief “if the [C]ourt considers it is just and equitable in the circumstances”.19 Section 323(4) makes it clear that the granting of relief does not deprive any person of any claim for damages that the person would otherwise have for any deliberate or negligent act or omission in relation to the placing of a wrongly placed structure. However, in making any order for damages, s 323(5) provides that the Court must take any relief granted under s 323 into account.
[54] Section 324 sets out the matters that a Court may consider in determining an application for relief including:
(a)the reasons why the wrongly placed structure was placed on or over the land affected; and
(b)the conduct of the parties; and
(c)the extent to which any person has been unjustifiably enriched at the expense of the person seeking relief because the owner of the land affected has become the owner of the wrongly placed structure.
[55] Section 325 sets out the orders that a court may make. These are quite specific, including requiring the land specified in the order to be vested in the owner of the land intended for the wrongly placed structure; or granting an easement over any land specified in the order for the benefit of the land intended for the wrongly placed structure. A further available order is to give the owner of the land intended for the wrongly placed structure the right to possession of any land specified in the order for the period and on the conditions that the Court may specify.
19 Subsection 2.
Does the current pleading of the second cause of action disclose a reasonably arguable cause of action?
[56] The terms and conditions on which any order under s 323 may be made mean that it is necessary to know whether the plaintiff has a right to install the billboards before making any orders, as the terms of those orders will need to take that right into account.
[57] The logic in MacLaurin v Hexton Holdings Ltd must equally apply in respect of boundary adjustments or other orders arising from wrongly placed structures. These must not be able to be made on the basis of a right to apply for a right. The party seeking the adjustment must already have the right that the party is seeking to protect by the adjustment in the boundary or other orders.
[58] On that basis, those parts of the pleading seeking orders in respect of the boundary for the purposes of installing or maintaining billboards do not disclose a reasonably arguable cause of action.
Is it appropriate to strike out the proceeding or would it be preferable to stay the proceeding until resource consent is obtained (if it can be obtained?)
[59] Although both causes of action have parts which are not reasonably arguable, they each have other parts that could remain if those unarguable parts were struck out; for the first cause of action, the access for existing uses and, for the second, correction of the existing boundary issues absent the billboards.
[60] If the plaintiff does intend to apply for either an extension to its existing use rights for static billboards or a new resource consent for the installation of digital billboards, consideration of the appropriate orders allowing for reasonable access or relating to a wrongly placed structure ought to await the outcome of those applications. The plaintiff would otherwise be required to make a second application as the original orders made would only allow for access or adjustment for maintenance purposes and not the installation and other requirements associated with billboards. The defendants would then be required to respond to that second application with the associated cost and inconvenience of doing so.
[61] Considerations of cost, convenience and the interests of justice in this case therefore support a stay being granted to avoid necessitating two sets of proceedings.
[62] The Court of Appeal’s decision in MacLaurin v Hexton Holdings Ltd supports this conclusion. After holding that the applicant could not rely on access for a proposed bottling plant for which resource consent had not yet been obtained, the Court of Appeal considered whether to remit the matter for reconsideration in the High Court on the basis of the existing uses.20 In that case the existing uses included the property being farmed as an olive plantation.
[63] The Court of Appeal held that remitting it to the High Court would be “artificial and pointless”, saying:21
[t]his dispute is all about access for a proposed bottling plant, not access for an olive plantation. It would be a waste of time to consider what reasonable access for an olive plantation might be. Even if the Judge did conclude the land (as an olive plantation) was landlocked, the appropriate solution might be quite different from what the solution should be if Hexton’s land can be used for a bottling plant.
[64] The Court of Appeal held that it was very unlikely that the High Court Judge would find the land landlocked on the basis of the existing use because the MacLaurins did not object to the Hexton’s having access to its land for those purposes.22
[65] The Court of Appeal stressed that the landlocked land provision at the time, s 129B of the Property Law Act 1952 (which is in essentially the same terms as s 326) is concerned with practical access to land, not necessarily a legal right to access, referring to a number of earlier decisions the Court of Appeal.23 The Court held that if access, as a matter of practice, is currently being accorded then the land is not landlocked even if in the future, through a change of current practice, the land may become landlocked.
20 MacLaurin v Hexton Holdings Ltd, above n 12, at [24].
21 At [39].
22 At [40].
23 At [41], citing Kingfish Lodge (1993) Ltd v Archer [2000] 3 NZLR 364 (CA) at [26]; and
Newstart Holdings Ltd v Tidd Foundation Inc (2005) 6 NZCPR 510 (CA) at [12] – [15].
[66] In that case the MacLaurins had provided confirmation to the Court of Appeal that they would continue to allow access for the purposes of the olive plantation. Here the defendants have not provided the same confirmation that access for existing maintenance will continue. Until the issue of digital billboards arose, however, access appeared not to have been problematic.
[67] Counsel for the plaintiff submits that there is no point applying for resource consent until Freedom Ventures knows whether it will have access to install the billboards. The same submission was made in MacLaurin v Hexton Holdings Ltd.24 The Court of Appeal was clear that the resource consent must be obtained first before any application for orders necessary for reasonable access can be considered.
[68] As the Court of Appeal states, the Resource Management Act allows “any person” to apply for resource consent over land over which they might have no ownership or other rights,25 the Court commenting that consent authorities are concerned with a proposed activity’s effects, not the nature of the applicant’s legal rights or interest in the particular land.26
[69] In MacLaurin the Court of Appeal held that, after obtaining consent, the next step is for the applicant to then acquire an interest in the land which permits them to make use of the resource consent obtained.
[70] In this case, in contrast to MacLaurin which only involved orders for landlocked land, Freedom Ventures is also seeking orders for a wrongly placed structure because part of its building (and billboards if consent is obtained) is on the Trust’s property. The orders sought currently allow for the installation and maintenance of billboards. As for the application for landlocked land, resource consent needs to be obtained first.
[71] As there appears to be an issue with the boundary, I do not consider it is appropriate to wholly strike out the claim as the boundary issue is a matter that is
24 MacLaurin v Hexton Holdings Ltd, above n 14, at [43]–[47].
25 At [47], referring to s 88 of the Resource Management Act and to Gordon and others Brookers Resource Management Act 1991 (looseleaf ed) at [A88.01].
26 MacLaurin v Hexton Holdings Ltd, above n 14, at [47].
required to be dealt with. Instead, I make orders below staying the proceedings until either resource consent is obtained or further order of the Court. If Freedom Ventures decides not to apply for consent for static or digital billboards, it may apply for the stay to be lifted, with such application being accompanied by a draft amended statement of claim removing the references to billboards or orders in relation to them.
[72] Counsel for the defendants submits that the plaintiff is using the proceeding to force the defendants to consent to the resource consent. I do not reach a view on that in the context of this strike-out application. However, staying the proceedings until either the necessary extension of existing use rights or resource consent is obtained or the proceedings are amended to remove those parts of the claim that allow for the installation of billboards, will have the practical effect of preventing the proceedings being used in this way.
Result
[73] The proceeding is stayed until a consent is granted by Auckland Council or any other relevant territorial authority for the installation of either a static or digital billboard on the southern wall of 8 Pitt Street or further order of the Court.
Costs
[74] As the defendants have succeeded, my preliminary view is that they are entitled to costs on a 2B basis. I ask the parties to confer and expect that costs ought to be able to be agreed. If that is not possible, the defendants may file a memorandum of no more than five pages within 15 working days of this judgment and the plaintiff a further 10 working days.
Associate Judge Sussock
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