McInness v Jones - [2018] NZHC 1499

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-465

[2018] NZHC 1499

BETWEEN
ANTONY FRANKLYN McINNESS SUSANNE MAVIS McINNESS and HENRY WILLIAM CRANEFIELD

Plaintiffs

AND

PETER ALLAN KEITH JONES JUDITH ANN JONES and

TIMOTHY JOHN BURCHER
First Defendants

161 TAMAKI DRIVE LIMITED
Second Defendant

PETER ALLAN KEITH JONES

Third Defendant

Hearing: 20 June 2018

Appearances:

G Blanchard QC for the Plaintiffs R O Parmenter for the Defendants

Judgment:

20 June 2018

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Gill, Coutts & Co (Christopher Gill), Auckland, for the Plaintiffs Carnahan Lawyers, Auckland, for the Defendants

Copy for:
Greg Blanchard QC, Auckland, for the Plaintiffs R O Parmenter, Auckland, for the Defendants

McINNESS v JONES [2018] NZHC 1499 [20 June 2018]

[1]The plaintiffs apply for discovery of these documents:

1All documents relating to which party or parties is or are developing 20A and 20B Selwyn Avenue, Mission Bay, Auckland;

2All invoices and delivery slips relating to the development of 20A and 20B Selwyn Avenue;

3All documents relating to budgeted costs in respect of the development of 20A and 20B Selwyn Avenue; and

4All document relating to arrangements with the owners of 18 Selwyn Avenue, including but not limited to all communications with them.

[2] The case involves a dispute about the use of a right-of-way. The plaintiffs sue the defendants in trespass. The case will be heard for three days beginning on 26 November 2018. Edwards J gave the background in her summary judgment decision of 14 November 2017:1
The dispute in context

[2]The plaintiffs are the trustees of the McInness Family Trust which owns the property at 24 Selwyn Ave. That property is the principal residence of Mr and Mrs McInness.

[3]The first defendants are the trustees of the Jones Family Trust. They own the property at 26 Selwyn Ave, which is currently a vacant lot. The Jones Family Trust is building a luxury residential home on the land.

[4]Mr and Mrs Jones are shareholders in the second defendant, 161 Tamaki Drive Limited (161 TDL). Mr Jones is the sole director of that company. 161 TDL owns the property at 20A and 20B Selwyn Ave (which I shall refer to as 20A/B). That land is being developed by 161 TDL into three high-end residential apartments.

[5]All of the properties, and the property owned at 18 Selwyn Ave, are accessed from a common driveway. The current ownership and access rights in respect of this driveway are shown in the plan scheduled to this judgment and are as follows:

1 McInness v Jones [2017] NZHC 2781 at [2]-[9].

[a]The 24 Selwyn Ave share of the driveway is the far right-hand side section which ends at that property.

[b]The 26 Selwyn Ave share is the section in the middle of the driveway which widens towards the top, and ends at that property.

[c]The 18 Selwyn Ave share are those sections on the left of the driveway.

[6]There are reciprocal rights…

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 McInness v Jones

Details

AGLC: McInness v Jones [2018] NZHC 1499
Case: [2018] NZHC 1499
Decision Date: 20 June 2018

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, considered an application for tailored discovery in the case of McInness v Jones. The plaintiffs, Antony and Susanne McInness, sought discovery of specific documents related to the development of properties at 20A and 20B Selwyn Avenue, Mission Bay, Auckland. The primary dispute involved alleged trespasses by trucks accessing the building sites, which the plaintiffs claimed used the part of the common driveway designated for their property. The defendants, including Peter Allan Keith Jones, Judith Ann Jones, Timothy John Burcher, and 161 Tamaki Drive Limited, contested the allegations and the scope of the required discovery. The legal issues centered on whether the requested documents were necessary to resolve the disputes regarding liability, the extent of trespass, and potential damages.

The court determined that tailored discovery was appropriate, focusing on documents that could clarify the identity of the developers and the extent of trespasses. The court directed the defendants to disclose the building consent applications and consents for both 161 Tamaki Drive Ltd and 26 Selwyn Avenue, emphasizing that only specific parts of these documents needed to be disclosed. The court also required the defendants to provide delivery dockets if the plaintiffs chose to pursue a per-trip damages claim within ten working days. The plaintiffs were directed to file an amended statement of claim clarifying their damages claim, specifying whether they sought compensatory or wrongful use damages and the amounts claimed.

The court concluded that the discovery should be narrowly tailored to the issues at hand, avoiding a disproportionate and extensive search for documents. The decision reserved the issue of costs for a later determination.

Orders