Mansfield v Bilkey - [2016] NZHC 752

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-003175 [2016] NZHC 752

BETWEEN
OLIVIA MARIE MANSFIELD

Plaintiff

AND

ALAN EDMOND BILKEY First Defendant

ROBERT BRUCE DAVIDSON, ELIZABETH HARTE AND TIMOTHY WILLIAM JOHNSON

Second Defendants

JOHN BILKEY DAVIDSON, JACQUELINE ANN DAVIDSON AND CB TRUSTEES 5 LIMITED

Third Defendants

STEPHEN FREDERICK TAYLOR AND VLAW TRUSTEES (2015) LIMITED Fourth Defendants

continued …/2

Hearing: 18 April 2016

Appearances:

N Campbell QC and C Baker for Plaintiff
G J Kohler QC for First, Second, Third, Fifth and Sixth
Defendants
E St John for Fourth Defendants

Judgment:

21 April 2016

JUDGMENT OF GILBERT J

This judgment is delivered by me on 21 April 2016 at 11.45 am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Counsel/Solicitors:
N Campbell QC, Auckland
G J Kohler QC, Auckland
E St John, Auckland
Price Baker Kerridge, Auckland

MANSFIELD v BILKEY & Ors [2016] NZHC 752 [21 April 2016]

…/2

HAMPSTEAD RANGATIRA LIMITED Fifth Defendants
ROBERT JAMES CUTHBERT BILKEY, MEIKE BILKEY AND JK LAW TRUSTEE CO LIMITED
Sixth Defendants

Introduction

[1] The parties own neighbouring properties in St Georges Bay Road, Parnell, Auckland. Access to these properties is by a single formed driveway. There is no other access.

[2] The plaintiff, Ms Mansfield, acquired title to the driveway on 18 December 2015. Four days later, she filed the present application for an interim injunction which would effectively prevent the defendants from driving down the driveway to their properties.

[3] The driveway is approximately 50 metres long and runs in an easterly direction from St Georges Bay Road. Although each of the defendants has the benefit of a registered right of way, Ms Mansfield claims that this is limited to a triangular section on the southern side of the driveway which tapers from the full width of 4.73 metres at the entrance off St Georges Bay Road to 1.31 metres at the eastern end where the properties are located. She claims that there is no right of way over the triangular section making up the northern side of the driveway. If Ms Mansfield is correct, then although the driveway is uniformly wide, it would be impossible for even a Smartcar to travel down its full length without trespassing on part of her land.

[4] Ian Walker, a surveyor engaged by Ms Mansfield, has prepared a plan showing the triangular section of the driveway allegedly subject to the right of way. This plan is attached to the judgment to aid understanding. Ms Mansfield claims that the right of way extends only over the triangular section shaded yellow on this plan, not the blue triangular section to the north of it. If the injunction is granted, Ms Mansfield proposes to paint a diagonal line down the driveway so that the defendants and their invitees can be clear about which part of the driveway they are permitted to use.

[5] Ms Mansfield no longer pursues her application for interim injunction against the fourth defendants, Mr Taylor and Vlaw…

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.

Continue reading Mansfield v Bilkey

Details

AGLC: Mansfield v Bilkey [2016] NZHC 752
Case: [2016] NZHC 752
Decision Date: 21 April 2016

CaseChat Overview and Summary

Mansfield v Bilkey involved a dispute between Olivia Marie Mansfield and several defendants over access rights to a single formed driveway leading to neighbouring properties in Parnell, Auckland. Mansfield, who had recently acquired title to the driveway, sought an interim injunction to prevent the defendants from using the driveway for vehicular access to their properties. The defendants had registered rights of way but Mansfield claimed these rights were limited to a specific section of the driveway, preventing any vehicular access beyond that point. The High Court of New Zealand was tasked with determining whether to grant the injunction, balancing the risk of injustice to both parties and considering factors such as the adequacy of damages as a remedy, the defendants' awareness of the dispute, the status quo, and the practical enforceability of any injunction.

The court found that while Mansfield had an arguable case that the defendants were trespassing, the defendants had an arguable defence based on their registered right of way. The court concluded that damages would be an adequate remedy for any trespass occurring until the substantive proceedings could be determined. The risk of greater overall disruption and damage from granting the injunction, coupled with the practical difficulties in enforcing the injunction, led the court to decline the application for interim injunction. The court reserved costs, leaving the matter open for further proceedings to fully determine the rights of the parties.

Orders