Mawson v Hitchfield
[2020] NZHC 2287
•3 September 2020
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 have referred to as the wall/fence runs in an east/west direction from the rear of 13 and 11B Cecil Road, i.e. from the eastern boundaries of those two properties, to the western boundaries of 13 and 11A at the street front. Although the wall/fence runs in a continuous line, it is effectively in three parts. Starting from the rear they are:
(a)“The Rear Fence” a wooden paling fence which separates all of 11B and part of 11A from 13 Cecil Road;
(b)“The Garage Wall”, the middle part, is a concrete block wall. It separates 11A from 13 Cecil Road; and
(c)“The Front Wall”, the part closest to the street is a concrete block wall. It separates 11A from 13 Cecil Road.
[8] The degree of encroachment along the wall/fence into the Mawson’s property varies along its length. The distances are:
(a)Rear Fence: from 0.20 (minimum) to 0.24 (maximum) metres in relation to 11A Cecil Road; and from 0.28 (minimum) and 0.33 (maximum) metres in relation to 11B Cecil Road;
(b)Garage Wall: from 0.16 (minimum) to 0.20 (maximum) metres in relation to 11A Cecil Road; and
(c)Front Wall: from 0.12 (minimum) to 0.16 (maximum) metres in relation to 11A Cecil Road.
[9] There is a buttress at each end of the Garage Wall, on the Mawsons’ side of the Garage Wall, to give it stability. The buttresses extend 0.2 metres from the Garage Wall.
[10]The orders sought encompass all three parts of the wall/fence.2
[11] The focus of Ms Hitchfield’s opposition is in relation to the Front Wall, Garage Wall and that part of the Rear Fence which runs alongside 11A Cecil Road.
Undisputed facts
[12]The Mawsons have owned and lived at 13 Cecil Road since 1973.
[13] In around 1976, Mr Hollows, the then owner of 11 Cecil Road, which was not cross-leased at that time, erected the Rear Fence. At about the same time the Front Wall, then encompassing a mix of block wall and wooden paling, and the Garage Wall were erected by the Mawsons. The Garage Wall was originally constructed as part of the Mawsons’ carport (the carport has since been removed).
[14] In 1979, Mr Rushton, who had purchased 11A Cecil Road, applied to the Takapuna City Council (the then responsible territorial authority) for a permit to construct a carport on 11A Cecil Road which would be attached to and supported by the Garage Wall. The Mawsons gave their consent to the application on both the application itself and the attached plans. The terms of the consent that issued recorded the intended carport was an “encroachment into side yard”.
[15] In 1989, Ms Hitchfield’s father, Reginald Hitchfield, purchased 11A Cecil Road. At some stage prior to 1999, the carport at 11A Cecil Road was enclosed, thus becoming a garage. The front and rear walls of the garage were attached to the Garage Wall (as was the garage roof which had been attached from the outset).
[16] In 2003, following Mr Hitchfield’s death, Ms Hitchfield and Mr Galloway acquired 11A from Mr Hitchfield’s estate.
[17] In or about 2003, Ms Hitchfield sought consent from the Mawsons to modify the Front Wall by removing the wooden paling and filling it in with further concrete
2 At the hearing the Court was advised that the Mawsons and the second respondents had settled the dispute between them. The part of the Rear Fence between 11B and 13 Cecil Road will be repositioned/reconstructed on the boundary between those two properties. That still leaves part of the Rear Fence between 11A and 13 Cecil Road in dispute.
block work, adding plaster and some detailing. Ms Hitchfield also added further block work to the Garage Wall. The Mawsons agreed to Ms Hitchfield carrying out the work. Ms Hitchfield bore the cost.
[18]In 2009 Ms Hitchfield replaced the roof and electric roller door of her garage.
[19] In September 2018, the Mawsons obtained resource consent to build a townhouse at the rear of their property. The application for resource consent was on the basis that the wall/fence would be demolished. The plans have the driveway to the new townhouse adjacent to the wall/fence. It will run across the area previously occupied by the Mawsons’ carport.
[20] In May 2019, the Mawsons obtained a building consent to construct the townhouse at the rear of 13 Cecil Road. As with the resource consent application, the plans indicated that the Garage Wall and Front Wall would be demolished.
[21] Construction of the rear townhouse commenced in late 2019. The precise date or month is not clear on the evidence.
Disputed facts
[22] Mr Mawson has sworn three affidavits in support of the application and Ms Hitchfield has sworn two in opposition.3 There are some disputed facts which Ms Kelly, for Ms Hitchfield, submits are relevant, but which cannot be resolved in this application, which proceeds on the basis of affidavit evidence without cross- examination. In particular there is an issue as to when the Mawsons became aware of the encroachment of the wall/fence onto 13 Cecil Road.
The Mawsons proceed with their development
[23] Mr Mawson says that their surveyors, Fluker Surveying Ltd (Flukers), surveyed 13 Cecil Road in October 2017 for the purpose of the intended redevelopment. He says their architects noted from the survey that the Rear Fence, Garage Wall and Front Wall were all “significantly within our boundary line”.
3 I made an order by consent that additional affidavits could be filed.
Mr Mawson says this is when they first became aware of this. (Ms Hitchfield’s position is that the Mawsons were aware much earlier. I refer to this disagreement further below).
[24] In preparing plans for the redevelopment, Mr Mawson says, the architects allowed for those structures to be demolished. He says this was because their site is relatively narrow, so it is desirable for them to utilise every part of it.
[25] Ms Hitchfield says that on the evening of 30 January 2018 Mr Mawson came to her door and told her that he and his wife intended to develop their property into two townhouses. They had suddenly discovered the boundary was not in the right place and she would have to remove the Garage Wall and the Front Wall.
[26] Mr Mawson says he spoke to the neighbours in or about March 2018 about the issue. Nothing turns on whether it was January or March 2018. There then followed a series of meetings, with lawyers becoming involved for both the Mawsons and Ms Hitchfield. The parties were unable to agree on any mutually acceptable compromise.
[27] The Mawsons decided to press on and, as noted above, in or about September 2018, their architects obtained a resource consent for the development on the basis of a plan allowing for the Front Wall, Garage Wall and Rear Fence to be demolished. The building consent followed in May 2019.
[28] Mr Mawson says that they decided to focus their attention on the rear townhouse and to revert to Ms Hitchfield when it was near to completion as the removal of the Garage Wall would not be required until they were in a position to commence construction of the driveway and a new front unit. (Despite the reference to construction of a new front unit in Mr Mawson’s affidavit, the Court was told at the hearing that the Mawsons now do not propose to replace their existing house with a new dwelling. They will retain the existing house as their home but will undertake some renovations to it).
[29] Mr Mawson says that during construction of the townhouse at the rear, the driveway was too narrow for large trucks to access the rear site.
[30] Mr Mawson says he approached Ms Hitchfield and the second defendants in September 2019 to discuss the issue but again no agreement could be reached.
[31] The Mawsons say urgent relief is required. The construction of the townhouse at the rear is now reaching its final stages. Mr Mawson says while the final interior works are being completed they propose to undertake the installation of new services and to complete the driveway. Those works are required for Auckland Council (the Council) to give its final approval and to obtain a code compliance certificate. Then application will be made to have new fee simple titles issued which will allow the townhouse at the rear to be marketed.
[32] Mr Mawson says if they are unable to complete the installation of the driveway and services in accordance with the approved plans, they will be unable to complete a sale of the townhouse at the rear. This will result in their incurring holding costs, which include interest on a loan they obtained in December 2019 and other charges. To date they have drawn down $913,123.43 of the approved loan amount. Their outgoings, including interest on that sum, are presently $6,319.02 per month. There is approximately a further $110,000 to be drawn down to enable the rear townhouse to be completed. At that time their holding costs will be $7,006.52 per month.
Orders sought
[33]The Mawsons seek interim orders:
(a)that they are entitled to recover immediate possession of all the land that comprises 13 Cecil Road;
(b)requiring the first and second defendants to allow the Mawsons (and/or their servants and/or agents) to enter onto 11A Cecil Road and 11B Cecil Road for the purposes of carrying out the removal/demolition works relating to the Front Wall, Garage Wall and Rear Fence (and such other encroachments as may be required to be
removed from 13 Cecil Road) as may reasonably be required in order for the Mawsons (and/or their servants and/or agents) to safely and effectively remove/demolish the same in accordance with any requirements imposed by the Council;
(c)requiring the first defendants (and the second defendants as may be required) to co-operate in all respects with the Mawsons’ demolition and removal of the Garage Wall, substantially in accordance with the terms of the condition imposed in the carport consent (referred to in
[53] below) and/or its general intent; and/or
(d)requiring the first defendants (and the second defendants as may be required) to co-operate in all respects with demolition of the Garage Wall and removal and repositioning of the first defendants’ carport roof, carport walls,4 driveway and any service lines in order to bring to an end the first defendants’ on-going trespass on 13 Cecil Road and/or to remove the first defendants’ carport roof, carport walls, and driveway, they being encroachments upon 13 Cecil Road which constitute a nuisance to the plaintiffs; and
(e)costs on an indemnity basis against the first and second defendants (or otherwise as the Court deems just).
The statement of claim
[34] In their statement of claim of 22 June 2020, the Mawsons seek damages against the first and second defendants for trespass upon 13 Cecil Road and/or a declaration that the Front Wall, Garage Wall and Rear Fence are not on the boundary line and are wholly upon 13 Cecil Road such that the Mawsons are entitled to demolish them at will; and/or an order that the Mawsons are entitled to recover immediate possession of all the land that comprises 13 Cecil Road and/or mandatory injunctions in terms as sought in this interlocutory application.
4 Although the application refers to the “carport” roof and walls, the reference is intended to be to the garage roof and walls on 11A.
Legal principles – general approach
[35] In the recent judgment of Intellihub Ltd v Genesis Energy Ltd,5 the Court of Appeal responded to a submission that all an applicant must demonstrate on the first limb of the test for an interim injunction is that its claim was “not frivolous or vexatious”. The Court of Appeal reiterated that the three-step approach requires the Court to assess:6
(a)whether there is a serious question to be tried;
(b)the balance of convenience; and
(c)where the overall justice lies.
[36] The Court does not resolve conflicts in affidavit evidence nor does it decide questions of law calling for “detailed argument and mature considerations”. Those are matters for trial.7
[37] In this case the Mawsons seek a mandatory injunction. Interlocutory mandatory injunctions have been described as “rare”.8 The position is succinctly stated by Eichelbaum CJ in Soft-Tech International Pty Ltd v Ball:9
Mandatory injunctions are relatively uncommon, interim mandatory injunctions are rare indeed, and interim mandatory injunctions having the effect of a final order and involving the payment of a sum of money which normally would be described as a debt, in my experience are completely novel.
[38] More recently in Clode v Oliphant,10 Palmer J discussed the law in relation to interim mandatory injunctions. He said:11
[21] An interim injunction is usually granted for the purpose of preserving the status quo pending trial of the substantive proceeding. An injunction usually restrains its subject from doing something. An application for an
5 Intellihub Ltd v Genesis Energy Ltd [2020] NZCA 344.
6 At [23], citing Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA).
7 American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL) at 407.
8 Clode v Oliphant [2018] NZHC 1442 at [21], citing Fidelity Life Assurance Co Ltd v Pilkington
HC Wellington CIV-2007-485-2270, 14 April 2010..
9 Soft-Tech International Pty Ltd v Ball (1990) 3 PRNZ 683 (HC) at 684.
10 Clode v Oliphant, above n 8..
11 At [21]-[23].
interim mandatory injunction, requiring a party to do something they would not otherwise do as sought here, does not usually accord with that purpose. Eichelbaum CJ described mandatory injunctions as “relatively uncommon” and interim mandatory injunctions as “rare indeed”. But that is not to say the legal test is different. It is not. As Williams J, in a statement approved by the Court of Appeal, stated in Pilkington v Fidelity Life Assurance Co Ltd:
The essential principle therefore is that interim mandatory injunctions will be subjected to the same test as interim prohibitory injunctions but in the case of interim mandatory injunctions, it will be a rare set of facts indeed that will withstand the scrutiny of that test.
[23] This approach is consistent with the decision of the Court of Appeal of England and Wales in Zockoll Group Ltd v Mercury Communications, which clarified the earlier approach still sometimes cited by New Zealand authorities.
[23] Similarly relevant to assessment of the balance of convenience, is the effect of interim orders in finally disposing of proceedings. But, again, this does not change the legal test. It simply makes success less likely on the facts, as the Court of Appeal made clear in McKay Electrical (Whangarei) Ltd v Hinton.
(citations omitted)
[39]I follow that approach.
Is there a serious question to be tried?
[40] The Mawsons must show there is a tenable resolution of the issues of fact and law on which they may be able to succeed at trial.12 Or, put another way, if the Mawsons cannot show a tenable basis on which they might be able to succeed at trial, then they will have failed to demonstrate there is a serious question to be tried.
[41] Mr Armstrong, for the Mawsons, submits the starting point is that, as registered proprietors of 13 Cecil Road, the Mawsons have indefeasible title to their property. They are, absent the existence of any legal right to the contrary, entitled to utilise their property as they see fit (within the parameters of the regulatory regimes of the territorial authority).
[42] Mr Armstrong submits that since approximately May 2018, or at the very latest since February 2020, Ms Hitchfield has, at the very least, been on notice that the
12 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd, above n 6, at [133].
Mawsons required immediate possession of the relevant part of their land. Ms Hitchfield has denied them that possession or, if the Mawsons can be considered to have been in possession of their land, Ms Hitchfield has trespassed.
[43] An action for recovery of the land is available to the Mawsons if they were not in factual possession of it. Alternatively if the plaintiffs were in factual possession of the relevant land they can succeed in trespass. Mr Armstrong submits there is also nuisance by way of the “substantial” and “unreasonable” interference with the plaintiffs’ natural right of access caused by the continuing presence of Ms Hitchfield’s garage roof and walls. Those encroachments are adversely affecting the Mawsons’ use and enjoyment of their land.
[44] He submits the appropriate remedy, given the limited nature of the interference, but its far greater impact, is the Mawsons’ recovery of their land, which would also abate any nuisance and then any trespass.
[45] Ms Kelly, for Ms Hitchfield, submits that there is no serious question to be tried, at least in this Court. Ms Hitchfield’s primary argument is that this is a fencing dispute over which the District Court has exclusive jurisdiction. Ms Hitchfield has filed an appearance under protest to jurisdiction to the substantive claim. She will be seeking orders that the declaration as to trespass and claim for costs in the statement of claim be stayed pending a determination of all the remaining issues in the statement of claim in the District Court. She says all those remaining parts of the proceeding in this Court should be dismissed.
[46] Without purporting to make a final determination, it is necessary to give consideration to Ms Kelly’s submissions on this issue in determining the present application. The Fencing Act 1978 gives the District Court13 jurisdiction to determine issues set out in s 24, which relevantly provides:
24 Jurisdiction of the court
(1)Notwithstanding that a question of title may be involved and whatever the amount involved, the court shall have jurisdiction to hear and
13 “Court” is defined in s 2 of the Fencing Act: “Court” means (a) the District Court under the District Court Act 2016: (b) the Disputes Tribunal with jurisdiction under section 24A.
determine all questions and disputes arising under this Act in relation to the following matters:
(f)the line of fence to be adopted, and the amount of compensation (if any) to be paid for loss of occupation of land and the manner of payment thereof:
(g)the date on or before which, and the manner in which, any work is to be done:
(h)the removal of a fence that is not erected on the proper boundary:
…
(k)the entry on adjoining land for the purpose of carrying out the work:
(l)the use on adjoining land of animals, vehicles, aircraft, hovercraft, any mode of conveyance, and any equipment for the purpose of carrying out the work:
(m)the value or cost of a fence, and the amount of the appropriate share payable by an occupier, for the purpose of any of the following sections, namely, sections 18, 19, and 20:
(n)the amount of the appropriate share under section 19:
(o)any other question or dispute arising out of this Act:
(p)the costs of any proceedings (including such expenses of survey as the court thinks fit), and the parties by whom and to whom costs are to be paid.
[47]“Fence” is defined in s 2 of the Fencing Act as follows:
fence means a fence, whether or not continuous or extending along the whole boundary separating the lands of adjoining occupiers; and includes all gates, culverts, and channels that are part of or are incidental to a fence; and also includes any natural or artificial watercourse or live fence, or any ditch or channel or raised ground that serves as a dividing fence
[48]Schedule 2 of the Fencing Act sets out examples of adequate fences, including:
5.Masonary walls: walls of brickwork, blockwork, or stonework adequately supported.
[49] Ms Hitchfield submits that the Rear Fence, Garage Wall and Front Wall are each fences under the Fencing Act. They each effectively separate the properties at 11A, 11B and 13 Cecil Road and the statement of claim and Mr Mawson’s evidence refer to the Front Fence and Rear Fence.
[50] Ms Kelly further submits that the fact that the Rear Fence and the Front Wall and Garage Wall are not on the boundary, does not prevent them from being “fences” under the Fencing Act. The Act contemplates fences which may not be erected on the legal boundary between two properties. The Court determines any disputes arising.14
[51] In response Mr Armstrong submits that the issues in dispute go beyond the “fence” (if it is in fact a fence). There is the issue of Ms Hitchfield’s garage roof, the front and back walls of Ms Hitchfield’s garage, which are connected to the Garage Wall, her planter box constructed against the front part of the Front Wall and her services which run alongside the Front Wall and Garage Wall. None of those matters can be considered by the District Court under the Fencing Act.
[52] Mr Armstrong also refers to the condition that was imposed by the Takapuna City Council when granting the consent to Mr Rushton to construct his carport in 1979. Mr Mawson says he was not aware of this condition at the time the consent was granted to Mr Rushton. Nor was he aware of the condition when issues first arose with Ms Hitchfield. At that time he was relying on the principle of indefeasibility of title. Now, having become aware of the condition, he also relies on it to support the enforcement of what he says are his rights. Mr Armstrong submits that a consideration of the condition would go beyond the jurisdiction of the District Court.
[53] It seems the Council property files do not disclose how the Takapuna City Council officer came to ascertain that the Garage Wall was not on the boundary but rather entirely within 13 Cecil Road. The condition of consent (the condition) reads:
… [S]ubject to the condition that the approval is granted on the clear understanding that should for any reason the boundary wall to which the carport is to be attached (such wall being the property of the adjoining owner at 13 Cecil Road) be removed or become otherwise unsuitable in the opinion of the District Inspector for the purpose of providing structural support for the carport subject of this application, the applicant or his successor in title shall carry out such works as are considered necessary by the District Inspector which may involve the construction of new structural supports or the demolition of the subject carport.
14 See s 24(1)(f) and (h).
[54] Mr Armstrong accepts that the condition is not enforceable per se in this Court, but he submits the Court may grant relief that recognises the enforceability of the condition (which could be enforced as a condition of resource consent by the Environment Court).15
[55] On the basis of the limited arguments able to be advanced on an application for an interim injunction, I do not accept Ms Kelly’s argument that this Court does not have jurisdiction to determine this dispute. The Fencing Act does not provide that the District Court has exclusive jurisdiction under the Fencing Act. Further, there are wider issues than simply the “fence”, namely the garage roof, garage door and so on, as referred to by Mr Armstrong. There is also the potential for relief in recognition of the condition.
[56] For completeness, I note that the Property Law Act 2007 (PLA) may have application although Mr Armstrong makes it clear that the Mawsons disavow any reliance on the PLA. Part 6 of the PLA gives the Court powers to impose orders in respect of land in certain circumstances. They are generally of a remedial nature. Sub- part 2 deals with wrongly placed structures. The definition of “wrongly placed structure” was discussed by the Court of Appeal in Barrypark Investments Ltd v Johnson.16 In that case the plaintiffs had brought a claim in trespass, nuisance and under the PLA.17 In my view it is clear that the definition in s 321(b) does not apply but I am not so certain that the definition in s 321(a) does not apply. But I did not hear argument of any substance on the issue. I simply note that if the Mawsons were to rely on the PLA, and the wall/fence does fall within the definition of a “wrongly placed structure”, that would be another reason why their claim may be heard in this Court.
[57] Finally, there is the issue of Ms Hitchfield having filed a notice of opposition before filing her notice of appearance under protest to jurisdiction. It is not strictly necessary for me to decide this, but I consider that filing an opposition to an interlocutory application does not constitute submission to jurisdiction.18 Rule 5.49 of the High Court Rules 2016 provides that a defendant may object to the jurisdiction
15 Relying on s 383, s 87(a) and s 108 of the Resource Management Act 1991.
16 Barrypark Investments Ltd v Johnson [2019] NZCA 686 at [18]-[23].
17 Johnson v Barrypark Investments Ltd [2019] NZHC 597.
18 Primary Services New Zealand Ltd v Fonagy [2019] NZHC 3050.
of the Court to hear and determine a proceeding; r 1.3 defines proceeding as any application to the Court for the exercise of the civil jurisdiction of the Court other than an interlocutory application. It is therefore not possible to protest jurisdiction in response to an interlocutory application. Rather this can only be done in response to the proceeding itself. I therefore accept that the filing of a notice of opposition to an interlocutory application does not, in itself, constitute a step taken in a proceeding.
[58] The case of Pathak v Tourism Transport Ltd,19 relied upon by Mr Armstrong to submit to the contrary, does not support his submission. In that case the plaintiffs took steps after their application for interim relief. The Court held that had a stay been sought immediately after the resolution of the interim relief application, it would have been granted. However, they took further significant steps in the proceeding and it was therefore too late to seek a stay.
[59] In the alternative and/or to the extent that the Garage Wall does not comprise a fence in terms of the Fencing Act, Ms Hitchfield says she has in personam claims against the Mawsons by way of an equitable easement of support giving rise to a claim for specific performance and/or equitable estoppel. She also says that she may seek relief from the Court under part 6, sub-part 2 of the PLA (wrongly placed structure).
[60] Under her alternative argument, Ms Hitchfield accepts that the Mawsons have the protection of indefeasibility of title as the registered proprietors of 13 Cecil Road. But Ms Kelly submits this protection has never been absolute. Key exceptions include fraud and claims in personam on account of the registered proprietors conduct.20
[61] In response Mr Armstrong submits that the evidence falls short of establishing any express grant of a right of support. He submits, first, the right is not sufficiently defined and certain, or is purely precarious.21 Although the Mawsons knew they were effectively consenting to the attachment of their then-neighbour’s carport roof to the Garage Wall, the written consent signed by the Mawsons was a Council consent for
19 Pathak v Tourism Transport Ltd [2002] 3 NZLR 681.
20 Citing Frazer v Walker [1967] NZLR 1069 (PC) at 1078; Regal Castings Ltd v Lightbody [2008] NZSC 87, [2009] 2 NZLR 43, cited by the Court of Appeal in Infinity v Kinara [2020] NZCA 309 at [41]. See also Infinity v Kinara at [58].
21 See DW McMorland and others Hinde McMorland and Sim Land Law in New Zealand (looseleaf ed, Lexis Nexis) at [16.006].
that particular neighbour to erect a carport encroaching that neighbour’s side yard. In other words, no written grant of a right to support was therefore expressly given to the then neighbour, Mr Rushton, by the Mawsons and so no such right can be asserted by Ms Hitchfield.
[62] Further, Mr Armstrong submits the Mawsons were unaware at the time that the Garage Wall was not on the boundary. So even if their consent can be regarded as a grant, it did not include any rights in respect of the Mawsons’ land. By contrast, Mr Armstrong submits Ms Hitchfield was effectively on notice that the garage at 11A encroached upon the Mawsons’ land by virtue of the notation on the 1989 flat plans as part of the Certificate of Title for 11A Cecil Road. This shows the encroachment of the garage onto 13 Cecil Road.
[63] Finally, Mr Armstrong submits that even if the Mawsons’ consent can be regarded as a grant, it cannot be regarded as absolute, as it remains subject to the condition of the consent to construct the carport. Ms Hitchfield takes issue with that. She does not accept it is enforceable against her as it is not registered on the title.
[64] There are factual issues in dispute relevant to Ms Hitchfield’s alternative argument. These cannot be resolved in this application, which proceeds on the basis of affidavit evidence without cross-examination. Mr Mawson says when he erected the Garage Wall and Front Wall (which continued the line of the Rear Fence) he was led to believe by his then neighbour, Mr Hollows, who constructed the Rear Fence, that the Rear Fence was on the boundary of 13 and 11 Cecil Road. Mr Mawson says Mr Hollows was aware of their intention to build the Garage Wall at the time Mr Hollows built the Rear Fence, so Mr Hollows only built that fence up to the point where the Garage Wall was to be erected. Mr Mawson says that when they constructed the Garage Wall and Front Wall they “therefore lined them up with the Rear Fence assuming this to be the boundary as Mr Hollows had indicated”.
[65] It is not clear from that evidence whether Mr Mawson is saying their intention was to construct the Garage Wall and Front Fence on the boundary (that is partly on number 13 and partly on number 11) or wholly within number 13 but hard up against the boundary.
[66] Ms Hitchfield’s position is that the Mawsons were aware of the location of the Front Wall and Garage Wall well before 2017. She says first, it is common ground that the Garage Wall was constructed to support the Mawsons’ carport. The Front Wall was built at or around the same time.
[67] Second, (and interpreting Mr Mawson’s evidence in [64] above on the basis that he had intended to build on the boundary) she says at the time the Garage Wall and Front Wall were constructed, the Town and Country Planning Act 1953 was in force. Although that Act was less sophisticated than the current building consent rules, it can be expected that, as a minimum, the territorial authority would not allow a carport to be built without an appropriate permit or on the boundary of another’s land, as opposed to slightly within it. Her position therefore is that it is more likely than not that the Garage Wall was built intentionally within the boundary of 13 Cecil Road as it was part of a building/structure of the Mawsons’ home, for the benefit of that land alone.
[68] She also refers to comments made by Mr Mawson to her blocklayer in 2003 to the effect that if the blocklayer did not put in enough steel reinforcement that he “will come over and rip [the Front Wall] down”.
[69] Finally, Ms Kelly refers to plans which Ms Hitchfield exhibited to her affidavit having obtained a full copy of the property file for 13 Cecil Road. Included in the annexures to Ms Hitchfield’s affidavit are plans from November 1980 for additions to the upper floor, new roof and cladding for 13 Cecil Road. There are also plans from 1998 relating to a living room addition. She submits those plans show that the Garage Wall is wholly within the boundary of 13 Cecil Road with a small gap between the boundary and the Garage Wall itself.
[70] As to the November 1980 plans, Mr Mawson responds that he believes he drew them up himself. His position is that the depiction of the block wall is not to scale and is shown on the boundary.
[71] In relation to the 1998 plans, Mr Mawson says that one of those appears to show the Garage Wall slightly within the boundary. He says he does not recall who
drew up this plan and, although he obviously saw it, he says it did not alert him to the possibility that the Garage Wall was not on the boundary.
[72] As to the floor plans for the March 1998 application, he says they were prepared by a drafting company for the proposed addition to the rear of their dwelling. He accepts the floor plans also appear to show a gap between the Garage Wall and the boundary. He says although he obviously saw the plans, nothing in them alerted him to the possibility that the Garage Wall was not on the boundary. He also says none of those plans was prepared with the benefit of a survey of 13 Cecil Road. He maintains that they did not know of the position until they received the Flukers’ survey in 2017.
[73] In relation to the last point regarding plans, Ms Kelly submits that discovery may well give further indications of what plans and/or permits were obtained at or around the time the carport on 13 Cecil Road was constructed.
[74] Having regard to those disputed facts it is not possible to determine whether Ms Hitchfield might succeed on this in personam claim at this stage.
[75] Although not a factual dispute, there is also the issue of constructive knowledge on the part of Ms Hitchfield. She says she was not aware that the Garage Wall, Front Wall and Rear Fence were not on the boundary until Mr Mawson raised the matter with her in early 2018. However, the Mawsons point to the fact that new titles were issued for 11A and 11B Cecil Road when they were cross-leased in 1989. Registered with those new titles was a flat plan for flat 1 (11A Cecil Road) that records the encroachment of the Garage Wall and the garage on 11A Cecil Road onto 13 Cecil Road. Mr Armstrong submits she therefore had constructive knowledge of the encroachment. There is the separate question of the condition and whether it can be enforced against Ms Hitchfield.
[76] Turning to the claim of equitable estoppel, Ms Hitchfield argues that it will be unconscionable to allow the Mawsons to remove the Garage Wall and Front Wall and insist on the indefeasibility of their title in circumstances where they:
(a)built the Front Wall and Garage Wall within their boundary some 44 years ago;
(b)gave consent to the construction of the “encroaching” carport on 11A Cecil Road using the Garage Wall as a means of support more than 40 years ago;
(c)allowed and agreed to Ms Hitchfield completing improvements to the Front Wall and to the garage at 11A Cecil Road; and
(d)stood by and allowed Ms Hitchfield to maintain the Front Wall and Garage Wall and her garage to their detriment over the past 17 years.
[77] In opposition Mr Armstrong submits that any consent provided by the Mawsons to works done by Ms Hitchfield does not give rise to an estoppel as no representations or promises of any interest in their land were made by the Mawsons.22
[78] Any consideration of Ms Hitchfield’s claim of equitable estoppel would require cross-examination on the precise nature of the representations made by the Mawsons when Ms Hitchfield carried out the improvements to the Front Wall, Garage Wall and to her garage on 11A. The factual issues referred to in relation to the claimed easement of support are also relevant.
[79] Drawing the threads together, I consider the Mawsons have demonstrated there is a serious issue to be tried in particular on their claim for recovery of land as submitted by Mr Armstrong. However that is subject to Ms Hitchfield’s defences. I do not consider it can be said at this stage that Ms Hitchfield does not have an arguable defence(s). But the Mawsons have demonstrated all that is required to satisfy the Court there is a serious question to be tried. If Mr Mawson’s evidence were accepted at trial there is a tenable basis on which the Mawsons might be able to succeed at trial.
22 See for example Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd [2014] NZCA 407, [2014] 3 NZLR 567 at [44] where the principles of equitable estoppel are set out.
Balance of convenience
[80]The real issue is where the balance of convenience lies.
[81] Mr Armstrong submits that the Mawsons will suffer irreparable injury if their application is not granted. Damages cannot adequately compensate them because, he submits, the future holding costs of over $7,000 per month cannot be recovered or adequately recovered by way of damages on the causes of action (for recovery of land, trespass and or nuisance). Mr Armstrong submits there is nothing to prevent the Front Wall or Garage Wall, or the wooden fence being reinstated should Ms Hitchfield succeed at trial.
[82] The holding costs referred to by Mr Mawson include the usual costs of owning a home: home insurance and rates and interest on the loan the Mawsons took out to fund the development on their property. That loan was drawn down in December 2019, close to two years after the dispute arose. In other words, the Mawsons incurred the debt with their “eyes wide open” to the dispute. The phrase “eyes wide open” was employed by the Chief Justice at first instance in the Klissers case.23 Although the reference in that case was to the defendant’s conduct, it is equally apt as a description of the Mawsons’ conduct here. The Mawsons having gone ahead, knowing of the dispute, now rely on future cost of interest as a reason for urgency. I consider that the status quo has not caused the holding costs, rather the Mawsons have done so, by undertaking the development in circumstances where they knew there was an issue with the neighbours in relation to the wall/fence and Garage Wall in particular.
Is there an available alternative for the Mawsons?
[83] Even if the Front Wall, Garage Wall and the Rear Fence were to remain in their current position pending the substantive hearing, this does not of itself prevent the Mawsons from applying to the Council to complete the development of the rear townhouse with its associated driveway and services in an amended form. Ms Hitchfield has filed an affidavit from Mark Ross, a consultant planner, who was
23 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd, above n 6, at [141].
contracted by the Council to consider the resource consent application filed by the Mawsons to subdivide and develop 13 Cecil Road.
[84] In about late July 2018, Ms Hitchfield and Ms Harness contacted him regarding the proposed development at 13 Cecil Road. Ms Hitchfield provided him with a copy of a survey she had commissioned from Yeomans Surveyors. In relevant part it is consistent with the Flukers’ survey. The Yeomans’ survey confirms that the Garage Wall is completely located on 13 Cecil Road.
[85] Ms Hitchfield advised Mr Ross that she was willing to make an application for boundary adjustment and purchase the additional land if this were an option.
[86] On 3 August 2018, Mr Ross wrote to the Mawsons’ architect inviting the Mawsons to put forward an alternative means of addressing the development without removing the Garage Wall. In particular, he advised the architect that he would be open to considering a dispensation to allow the width of the accessway to the rear dwelling to be less than the 3.0 m ordinarily required. He further advised that depending on the extent of the reduction in width, this may be supportable from a traffic engineering perspective; and the boundaries could then be adjusted by way of a minor boundary adjustment; and that Ms Hitchfield was willing to purchase the land and complete a boundary adjustment application.
[87] The Mawsons’ architect replied on 8 August 2018 saying that she did not believe that a boundary adjustment was the best way forward as it would significantly reduce the accessway to the proposed rear property. She said it would also result in a much greater height in relation to boundary infringements. She concluded that this was a civil matter and would be dealt with privately between the owners of 13 and 11 Cecil Road. Mr Ross said, as a planner, he could not take this matter any further.
[88] In the context of the present dispute, it is Mr Ross’ opinion that retention of the Garage Wall as it is, would be unlikely to result in any adverse effects that would result in a resource consent application being declined. He says given the removal of the Garage Wall would likely result in the garage at 11A being damaged or destroyed, he would have supported a dispensation reducing the width of the driveway by the minor
encroachment from the wall. He adds that engineering advice in terms of the width of the accessway to the rear dwelling and maintenance of the overland flow path would be required to confirm that there are no adverse effects.
[89] Finally, he says there would be no issue with any adverse effects resulting from any non-compliance with the H4 “Residential-Mixed Housing Suburban Zone” standards. Any non-compliance relating to the retention of the Garage Wall would be technical in nature and would not result in any adverse effects beyond the boundaries of 11 and 13 Cecil Road.
[90] His evidence was not challenged in reply. (Although Mr Armstrong submitted that Mr Ross had gone beyond the role of an expert in his evidence. That submission is based on what I consider is a misunderstanding of Mr Ross’ comment about part of the evidence of the Mawsons’ architect).
[91] The Mawsons’ architect estimates the cost of obtaining the amendment to the resource consent is in the region of $15,000-$20,000 plus GST. That is a relatively limited sum when compared to the costs and the harm to Ms Hitchfield, which I turn to next.
[92] For completeness I record that Ms Hitchfield remains willing to undertake a boundary adjustment and purchase the underlying land. However, I acknowledge the Mawsons do not wish to sell their land and are not obliged to do so.
[93] Finally, there is no evidence from or on behalf of the Mawsons to suggest that, if they were to proceed with an application to amend their resource consent, a further application to revert to the original consent, if they were successful at trial, would not be possible. I accept there would be an additional cost but, on the face of the evidence, the possibility of being able to implement the original resource consent has not been addressed.
Will there be harm to Ms Hitchfield if the application is granted?
[94] If the application is granted Ms Hitchfield will lose the use of the Garage Wall and the Front Wall and the services to her property which run alongside those two
walls underneath her concrete driveway. She will need to modify the structure of her garage and the house itself in order to facilitate the demolition of the Garage Wall so as to avoid endangering the structure of the garage and the house attached. Relying on a quote from Sandford Developments Ltd, Ms Hitchfield says the cost will exceed
$100,000. Added to that will be design and consenting costs and the cost of moving the service lines. I accept that to remove the Garage Wall while ensuring the garage itself does not collapse will require an engineering design and building consent.
[95] In his oral submissions Mr Armstrong challenged the estimate of $100,000 describing it as a “Rolls Royce” replacement. He submits that the cost would be more likely in the region of just over $60,000.
[96] Whether or not Mr Armstrong is correct in his submission, either of those sums is a substantial amount.
[97] There is also the requirement in one of the proposed orders for Ms Hitchfield to co-operate with the Mawsons’ agent but without detail of the required cooperation. Nor are there timeframes, or conditions.
[98] Mr Armstrong submits there is nothing to prevent the reinstatement of the block wall if Ms Hitchfield were successful in the substantive hearing. He suggests, without an evidential basis, that it would be open to Ms Hitchfield to, at this stage and as an interim measure, simply prop up the garage roof with some other form of support to replace the support provided by the Garage Wall. She could then enclose the space with plywood pending the substantive hearing. There was no evidence that this suggestion would be a workable solution.
[99] In my view the reality would be that once the Garage Wall and Front Walls are removed, this would have the effect of the grant of a final order. Ms Hitchfield would need to rebuild her garage. The substance of any of Ms Hitchfield’s rights, if found to exist, would have been extinguished. It seems highly unlikely that she would further rebuild by returning the Garage Wall and Front Wall to their current positions if she was successful at the substantive hearing.
Undertaking as to damages
[100] As is required by r 7.54, the Mawsons have filed an undertaking as to damages. There is limited evidence that the undertaking can be honoured. Mr Mawson annexes to his first reply affidavit a desktop valuation of 13 Cecil Road which records the estimated value as $2,550,000.00. The Mawsons’ total borrowing from First Mortgage Custodians Ltd will be in the region of $1,023,123.43 ($913,123.43 to date plus a further approximate $110,000).
[101] If the injunction were granted and Ms Hitchfield succeeded at trial, she would then be an unsecured creditor of the Mawsons. They are of retirement age and there is no evidence of other assets apart from the property at 13 Cecil Road. The existing home has been settled as a joint family home. Whether that would be available as an asset would depend on whether the Official Assignee sought the sale of the property and, second, whether the High Court ordered it. There is limited guidance as to whether or not either of those steps might occur.
[102] However there is also the townhouse under construction. It does not appear that it is included in the desktop valuation. But there is no evidence of its anticipated sale price, and to what extent it might exceed the borrowings from First Mortgage Custodians Ltd.
[103] With the limited evidence available to the Court, I can only give the undertaking as to damages limited weight.
Overall justice
[104] Mr Armstrong submits Ms Hitchfield’s “defiance of her obligations” under the condition (attaching to the consent obtained by Mr Rushton to build the carport) is egregious and ought not to be allowed to continue. He therefore submits that the overall justice would best be served by the granting of the relief sought.
[105] I do not see it in that way. While the Mawsons understandably say that the wall/fence is on their land and they want to remove it, that is a matter for the substantive hearing for the reasons already discussed.
[106] I consider the overall justice lies with maintaining the status quo pending the substantive hearing. Since the dispute arose in 2018, and in the knowledge of that dispute, the Mawsons have:
(a)obtained resource consent for the development of 13 Cecil Road on the basis that the Rear Fence, Garage Wall and Front Wall would be demolished (in September 2018);
(b)obtained building consent again on the basis that the Rear Fence, Garage Wall and Front Wall would be demolished (in May 2019);
(c)commenced the development of the rear townhouse on their property (in late 2019); and
(d)taken out a loan for the purpose of developing their property (in December 2019).
[107] It is now over two years since the dispute arose and the Mawsons plead urgency seeking what is effectively final relief on the basis that future interest payments on the loan (together with other payments) require them to bear a significant holding cost. The Mawsons have chosen to incur the holding costs with their “eyes wide open” knowing of the dispute. This is not an adequate basis for awarding urgent relief. This is a matter that should have been resolved before commencing the development and incurring the future holding costs that will arise.
[108] Further in considering the overall justice, if I were to grant the injunctions as sought they will have the effect of a final order. Ms Hitchfield will not have the opportunity to test the matter at trial.
Result
[109]The application is dismissed.
Costs
[110] My preliminary view is that costs should follow the event and that Ms Hitchfield is entitled to costs. In the first instance I give the parties the opportunity to confer and if costs can be agreed a joint memorandum should be filed within 20 working days of the date of this judgment.
[111] If costs cannot be agreed, Ms Hitchfield may file and serve a memorandum within 10 working days of the date for the joint memorandum. The Mawsons may file and serve a memorandum in response within a further 10 working days.
[112] Memoranda must not exceed five pages (excluding any attachments). I will determine costs on the papers.
Gordon J
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