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McInness v Jones

McInness v Jones

Case [2017] NZHC 2781 14 November 2017

Trespass

Injunction

Summary Judgment

Admissibility of Evidence

Property Law

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-000465 [2017] NZHC 2781

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

Hearing: [On the Papers]

Counsel:

G P Blanchard QC and C D Gill for the Plaintiffs
R O Parmenter and T S Carnachan for the Defendants

Judgment:

14 November 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 14 November 2017 at 2.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: G P Blanchard QC, Auckland
R O Parmenter, Auckland

Solicitors: Gill Coutts and Co, Auckland
Carnachan Lawyers, Auckland

McINNESS and ANOR v JONES and ORS [2017] NZHC 2781 [14 November 2017]

Introduction

[1] The plaintiffs and the defendants are neighbours. They are embroiled in a dispute about access over a common driveway for a development being undertaken by the defendants. The plaintiffs seek, by way of summary judgment, a permanent injunction restraining the defendants and their employees, agents and contractors from trespassing on the plaintiffs’ land.

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:

(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 of way granted over the 24 and 26 Selwyn Ave shares of the driveway. That reciprocal right of way provides:

… their servants agents workmen and visitors and all persons having business with them ingress egress and regress on foot and with and without implements and vehicles of every description loaded or unloaded by night as well as by day…

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 [2017] NZHC 2781
Case: [2017] NZHC 2781
Decision Date: 14 November 2017

CaseChat Overview and Summary

The case of McInness v Jones involves a dispute between neighbours regarding access over a common driveway for a development being undertaken by the defendants. The plaintiffs seek a permanent injunction restraining the defendants and their employees, agents, and contractors from trespassing on the plaintiffs' land. The defendants deny any trespass and argue that damages is an adequate remedy. The court was required to decide whether the case was appropriate for resolution by way of summary judgment and whether a permanent injunction should be granted. The court found that there was a real risk of trespass, but the extent and nature of any ongoing trespass was in dispute. The court also found that it could not be sure that damages were not an adequate remedy and that a permanent injunction would not be oppressive to the defendants. Therefore, the application for summary judgment was declined, and the matter was directed to be set down for a case management conference.

Orders