Mawson v Hitchfield - [2020] NZHC 2287

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-926

[2020] NZHC 2287

IN THE MATTER of the Declaratory Judgments Act 1908

BETWEEN

BRUCE ROBIN MAWSON AND JENNIFER FENWICK MAWSON

Plaintiffs/Applicants

AND

NATALIE JANE HITCHFIELD AND STUART NORMAN GALLOWAY

First Defendants/First Respondents

BRIAN LESLIE HALL AND JANICE COLLEEN HARNESS

Second Defendants/Second Respondents

Hearing: 28 August 2020

Appearances:

J F Armstrong for the Plaintiffs/Applicants

T M Kelly for the First Defendants/First Respondents

No appearance by or on behalf of the Second Defendants/Second Respondents

Judgment:

3 September 2020

JUDGMENT OF GORDON J

This judgment was delivered by me
on 3 September 2020 at 3.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Armstrong Murray, Auckland
Martelli McKegg, Auckland

MAWSON v HITCHFIELD [2020] NZHC 2287 [3 September 2020]

Introduction

[1] The applicants, Bruce and Jennifer Mawson (the Mawsons), the first respondents, Natalie Hitchfield and Stuart Galloway and the second respondents, Brian Hall and Janice Harness, own adjoining properties at 13, 11A and 11B Cecil Road, Milford respectively.1

[2] There is a wall/fence made up of three distinct parts between 13 and 11A/11B Cecil Road. It is uncontested that the wall/fence is on the Mawsons’ property rather than on the boundary between 13 and 11A/11B Cecil Road. Part of the wall/fence forms one of the supporting walls of Ms Hitchfield’s garage, which is attached on its other side to her house.

[3] The Mawsons apply for an interim mandatory injunction to enable them to demolish the wall/fence. They say that without doing so, they are unable to complete the redevelopment of their property which is in progress.

[4]Ms Hitchfield opposes the application.

[5] The second respondents took no part in the hearing having obtained a direction from the Court excusing them from appearing on the basis that they will abide the decision of the Court on the application.

Background

The subject matter of the application

[6] Cecil Road runs in a north-south direction. The boundary between 13 and 11A/11B Cecil Road is on the southern side of 13 Cecil Road and (obviously) on the northern side of 11A and 11B Cecil Road. Ms Hitchfield’s property at 11A Cecil Road is on the street front and the second respondents’ property at 11B is behind 11A. The

1 The first respondents, Natalie Hitchfield and Stuart Galloway, own 11A Cecil Road as trustees of a trust. Ms Hitchfield lives at 11A Cecil Road. Mr Galloway does not. For present purposes I will refer to the first respondents simply by reference to Ms Hitchfield.
Titles to 11A and 11B Cecil Road are composite titles. The first respondents and second respondents are each owners of a cross lease and a one-half share in the fee simple estate for 11 Cecil Road.

rear boundaries of 13 and 11B Cecil Road are on the eastern boundaries of those properties. The street frontages of 13 and 11A Cecil Road are on their western boundaries.

[7] What I…

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 Mawson v Hitchfield

Details

AGLC: Mawson v Hitchfield [2020] NZHC 2287
Case: [2020] NZHC 2287
Decision Date: 3 September 2020

CaseChat Overview and Summary

The case of Mawson v Hitchfield involves a dispute between the Mawsons, owners of property 13 Cecil Road, and the Hitchfields, owners of property 11A Cecil Road, over the ownership and encroachment of a wall/fence that runs between the two properties. The Mawsons sought an interim mandatory injunction to enable them to demolish the wall/fence to complete their property redevelopment. The legal issues the Court needed to decide included whether the Court had jurisdiction to determine the dispute, whether there was a serious question to be tried, and whether the balance of convenience lay in favour of granting the injunction. The Court found that there was a serious question to be tried, but the balance of convenience did not lie in favour of the Mawsons. The Court dismissed the application and ordered that costs should follow the event, with the Hitchfields entitled to costs.

Orders