McInness v Jones
[2017] NZHC 2781
•14 November 2017
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 DefendantsJudgment:
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 in over upon and through that portion of the land … for the purpose of giving access to and from the land first above described and any part thereof and to and from the public road …
[7] The right of way means that trucks which are delivering goods to 26 Selwyn
Ave may use the 24 Selwyn Ave share of the driveway without trespassing.
[8] There are also rights of way in favour of 20A/B Selwyn Ave granted over the
18 and 26 Selwyn Ave shares of the driveway. That means that trucks accessing
20A/B may use the left-hand side and middle portions of the common driveway without trespassing. However, there is no right to use the 24 Selwyn Ave share of the driveway to access 20A/B. It is common ground that trucks which travel over the 24 Selwyn Ave share of the driveway to access 20A/B are trespassing.
[9] Because of a slight height differential in the common driveway there is currently only 2.68 metres of formed driveway which trucks accessing 20A/B may use without trespassing on the 24 Selwyn Ave share of the driveway. The defendants have plans to widen the formed driveway which they say will result in a width of
2.87 metres. A replacement right of way between the defendants and the owners of
18 Selwyn Ave has been agreed, but not yet registered.
The claim and defence
[10] The statement of claim and application for summary judgment was filed on
21 March 2017.
[11] The plaintiffs claim that the defendants are using its part of the driveway (the
24 Selwyn Ave share) for the purposes of accessing 20A/B Selwyn Ave to enable the construction of the apartments on the property.
[12] They claim that 161 TDL has trespassed in the past, and is continuing to
trespass on an almost daily basis. Further, the plaintiffs say that the “alternative
access” over the 18 and 26 Selwyn Ave shares of the driveway is not wide enough
for trucks to access 20A/B without trespassing.
[13] The plaintiffs claim that the Jones Family Trust is a party to the trespass because the developments on both pieces of land are being undertaken together. Therefore, the plaintiffs say that both the Jones Family Trust and 161 TDL must be liable for the trespass. In the alternative, the plaintiffs say that the development work is being carried out at Mr Jones’ direction and he is therefore liable for the trespass. That is because he directed the trespass, is vicariously liable for the trespass of his contractors, or is jointly liable for the trespass by virtue of his role as director of
161 TDL.
[14] A permanent injunction against both defendants is sought in the following terms:
An order that the defendants must not use nor permit their employees, agents, contractors or any other party to use the right of way easement (created by memorandum of transfer A328683) that 26 Selwyn Avenue, Mission Bay, Auckland 1071 (Certificate of title NA 15A/766) has over
24 Selwyn Avenue, Mission Bay, Auckland 1071 (Certificate of title
NA 15A/767) for the purpose of accessing 20A Selwyn Avenue, Mission Bay, Auckland 1071 (Certificate of title 673294) and
20B Selwyn Avenue, Auckland 1071 (Certificate of title 673293), including but not limited to using or permitting the right of way to be used to move vehicles, construction equipment and materials, and construction workers to
and from 20A and 20B Selwyn Avenue.
[15] 161 TDL admits that it has trespassed in the past. However, Mr Jones on behalf of 161 TDL, says that this has now stopped and he has given an undertaking that 161 TDL will not use the 24 Selwyn Ave share of the driveway for the purposes of accessing 20A/B.
[16] Furthermore, 161 TDL says that the alternative access via the formed driveway gives it access rights to 20A/B without the need to trespass. It has also erected a sign at the entrance to the driveway which provides:
All Contractors Tradesmen &Vehicles
MUST USE THE LEFT HAND SIDE OF THE SHARED DRIVEWAY
No exceptions
Phone [name and phone number]
[17] The Jones Family Trust denies any past trespass, or future risk of trespass, noting that it has rights of access over the 24 Selwyn Ave share of the driveway under the reciprocal right of way. Mr Jones has agreed to fix any damage caused to the driveway as a result of trucks passing and he has done so on a number of occasions.
[18] Accordingly, the defendants say that a permanent injunction is not necessary. In any respect, they say that the dispute about whether the trespass is continuing means the application is not amenable to summary judgment. And, to the extent there is a risk of future trespass, the defendants submit that it is reasonably arguable that damages is an adequate remedy.
Relevant legal principles
Summary judgment
[19] The McInness Family Trust seeks relief by way of summary judgment. The principles are well known but they are important to state again because whether this claim is appropriate for resolution by way of summary judgment is directly at issue. In Krukziener v Hanover Finance, the Court of Appeal summarised those principles as follows:1
The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR
1; (1986) 1 PRNZ 183 (CA), at p 3; p 185. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its
evidence is sufficient to show there is no defence, the defendant will have to
respond if the application is to be defeated: MacLean v Stewart (1997) 11
PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept
uncritically evidence that is inherently lacking in credibility, as for example
where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng
Mee Yong v Letchumanan [1980] AC 331 at 341 (PC). In the end the Court's
assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).
1 Krukziener v Hanover Finance [2008] NZCA 187, (2008) 19 PRNZ 162 at [26].
Trespass and injunctions
[20] The law of trespass was recently summarised by the Court of Appeal as follows:2
Trespass is an unjustified direct interference with land in the possession of another. The cause of action protects the possessory interest, and it does so in a simple and powerful way; trespass is actionable without proof of actual damage and although the act of trespass must be intentional, honest mistake affords no defence. Injunction is a usual remedy. Justifications are few — essentially, consent, statutory authority, and necessity — and no question ordinarily arises of balancing harms and benefits of the plaintiff’s use, on the one hand, and the purpose for which the defendant asserted control, on the other.
[footnotes omitted]
[21] As noted in the above passage, the general rule is that a plaintiff whose title is not in issue is normally entitled to an injunction to prevent the commission or continuation of a trespass.3
[22] However, in some cases, damages may be awarded in lieu of an injunction. In the United Kingdom, the adequacy of damages for cases involving the invasion of property rights has been traditionally assessed in accordance with the “good working rule” as set out in Shelfer v City of London Electric Lighting Co Ltd. That rule
provides that damages in substitution for an injunction may be given if:4
(a) the injury to the plaintiff ’s legal rights is small; and
(b) is one which is capable of being estimated in money; and
(c) is one which can be adequately compensated by a small money payment; and
2 BEMA Property Investments Ltd v Body Corporate 366611 [2017] NZCA 281 at [45].
3 Mansfield v Bilkey [2016] NZHC 752 at [18] citing Patel v W H Smith (Eziot) Ltd [1987] 1 WLR
853 (CA) at 858-859. See also Andrew Barker “Permanent Injunctions” in Peter Blanchard (ed)
Civil Remedies in New Zealand (2nd ed, Brookers Ltd, Wellington, 2011) at 256.
4 Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 (CA) at 322-323. See also Andrew Barker “Permanent Injunctions” in Peter Blanchard (ed) Civil Remedies in New Zealand (2nd ed, Brookers Ltd, Wellington 2011) at 256–257.
(d)the case is one in which it would be oppressive to the defendant to grant an injunction.
[23] The “good working rule” has been adopted in New Zealand in some cases,5 but in others it has been treated as providing guidance only.6 In Day v Black, a case involving the construction of a house in breach of a restrictive covenant, Rodney Hansen J approached the adequacy of damages issue by treating the “good working rule” as relevant but not decisive.7 Instead, the Judge followed a “hardship
approach” finding that damages might be awarded in substitution:8
... only when the hardship caused to the defendant through specific enforcement would so far outweigh the hardship caused to the plaintiff if specific enforcement were denied that it would be unjust in all the circumstances to do more than award damages.
[24] There have been divergent approaches taken to the application of the rule in the United Kingdom also.9 In Jaggard v Sawyer, the United Kingdom Court of Appeal considered a claim for trespass in relation to a restrictive covenant.10 Millet LJ noted that the “good working rule” was only a working rule and did not purport to be an exhaustive statement of the circumstances in which damages may be awarded instead of an injunction.11 The Court of Appeal upheld the lower court’s refusal to grant an injunction.
[25] The degree to which the rule should be applied in that jurisdiction was clarified by the United Kingdom Supreme Court in Lawrence v Fen Tigers.12 The plaintiffs in that case sought a permanent injunction to prevent the ongoing nuisance arising from the noise from a nearby motorsport track. The Supreme Court confirmed that the “good working rule” was not to be applied in a way which
fettered the Court’s discretion to grant injunctive relief. Lord Neuberger said:
5 See, for example, Ryder v Hall (1908) 27 NZLR 385 (CA) at 415-416.
6 See, for example, Eaton v Dagleish [1940] NZLR 702 (HC) at 718.
7 Day v Black (2004) 6 NZCPR 169 (HC).
8 At [34]. The formulation comes from ICF Spry The Principles of Equitable Remedies (9th ed, Lawbook Co, Sydney, 2014) at 655.
9 See, for example, Watson v Croft Promo-Sport Ltd (Watson) [2008] EWHC 759, [2008] 2
ALL ER 1171 (QC) and Watson v Croft Promo-Sport Ltd (Watson) [2009] EWCA Civ 15 (CA).
10 Jaggard v Sawyer [1995] 1 WLR 269 (CA).
11 At 287.
12 Lawrence v Fen Tigers [2014] UKSC 13, [2014] AC 822 [formerly referred to as Coventry v
Lawrence].
120The court’s power to award damages in lieu of an injunction involves a classic exercise of discretion, which should not, as a matter of principle, be fettered, particularly in the very constrained way in which the Court of Appeal has suggested in Regan and Watson. And, as a matter of practical fairness, each case is likely to be so fact-sensitive that any firm guidance is likely to do more harm than good. On this aspect, I would adopt the observation of Millett LJ in Jaggard [1995] 1 WLR 269, 288 where he said:
Reported cases are merely illustrations of circumstances in which particular judges have exercised their discretion, in some cases by granting an injunction, and in others by awarding damages instead. Since they are all cases on the exercise of a discretion, none of them is a binding authority on how the discretion should be exercised. The most that any of them can demonstrate is that in similar circumstances it would not be wrong to exercise the discretion in the same way. But it does not follow that it would be wrong to exercise it differently.
123Where does that leave A L Smith LJ’s four tests? While the application of any such series of tests cannot be mechanical, I would adopt a modified version of the view expressed by Romer LJ in Fishenden 153 LT 128, 141. First, the application of the four tests must not be such as to be a fetter on the exercise of the court’s discretion. Secondly, it would, in the absence of additional relevant circumstances pointing the other way, normally be right to refuse an injunction if those four tests were satisfied. Thirdly, the fact that those tests are not all satisfied does not mean that an injunction should be granted.
[26] This decision confirms that the court’s discretion to grant injunctive relief in either nuisance or trespass cases is not to be constrained. The Fen Tigers approach was recently endorsed by this Court in Ogle v Aitken, a case concerning claims in trespass and nuisance.13 Clark J held that since Fen Tigers, “a wider range of circumstances, including the public interest, may come into play in considering an award of equitable damages in lieu of an injunction”.14
[27] Finally, I note that s 13 of the Senior Courts Act 2016 provides that the High Court may award damages in substitution for an injunction. That section replaces s 16A of the Judicature Act 1908 which was to the same effect.
[28] In summary, while an injunction will be the usual remedy for a trespass, the grant of injunctive relief remains a matter of discretion. Whilst the good working
13 Ogle v Aitken [2017] NZHC 1799.
14 At [32].
rule provides guidance as to how that discretion should be exercised, it does not prevent the court from taking into account other factors which may be relevant to whether that relief is appropriate in all the circumstances.
Should the order be made against 161 TDL?
[29] There is no dispute between the parties that the 26 Selwyn Ave right to use the 24 Selwyn Ave share of the driveway may only be used for the enjoyment of
26 Selwyn Ave, and not for the enjoyment of any other land, including
20A/B Selwyn Ave.15 Therefore, trucks which are using the 24 Selwyn Ave share of the common driveway are trespassing if they are using it to access 20A/B Selwyn Ave.
[30] There is also no dispute that 161 TDL has trespassed in the past. But there is a dispute about whether there is a real risk of trespass in the future, and whether the trespass is continuing.
[31] In affidavits sworn in support of the summary judgment application, Mr and Mrs McInness say that trucks are continuing to trespass; that it is ongoing and frequent; and that it happens nearly every day and sometimes multiple times in one day.
[32] In contrast, Mr Jones has sworn an affidavit denying that there is a continuing trespass, or even a real risk of one given the alternative access which is being used by trucks accessing 20A/B.
[33] Consistent with the principles set out in Krukzeiner, I have taken a robust and critical approach to the evidence. And, on that approach, I consider there to be a real risk that truck drivers will cross over onto the 24 Selwyn Ave side of the driveway – at least on occasion – for the following reasons.
(a) First, although photographs attached to Mr Jones’ affidavit suggests
that the formed driveway is of sufficient width that trucks can pass without trespassing, those photographs show that there is little room
15 See Mikitasov v Collins [2008] NZCA 390, (2008) 9 NZCPR 735 for this proposition.
for error. The fact that the current width of the driveway also appears to be less than that stipulated in the resource consent for the development also suggests that the current access for construction traffic is extremely tight.
(b)Second, truck drivers are not compelled to stay within the formed driveway. The sign at the driveway entrance directs them to keep left, but there is otherwise nothing preventing them from straying onto the
24 Selwyn Ave share of the driveway. Photographs annexed to Mrs McInness’ affidavit suggest that truck drivers do not always observe the sign, which requires all trucks to keep left. Mr Jones’ evidence that the “sign at the entrance seems to work with trucks coming only for 20A and 20B” does not bear scrutiny. The sign does not make any distinction at all based on the truck driver’s ultimate destination.
(c) Third, although Mr Jones’ undertaking on behalf of 161 TDL appears to be a genuine commitment to mitigating the risk of future trespass, that alone cannot prevent truck drivers from (occasionally) straying onto the 24 Selwyn Ave part of the driveway.
[34] Therefore, it appears inevitable that there will be at least the occasional and inadvertent trespass by trucks using the driveway to access 20A/B. However, the extent of that risk, and whether the trespass is continuing, is very much in dispute. The McInnesses say the trespass is ongoing; Mr Jones says it has halted.
[35] The McInnesses have not been able to produce any direct evidence of a continuing trespass. Mrs McInness exhibited several photographs of trucks on the
24 Selwyn Ave side of the driveway which, she says, evidences an ongoing trespass. But, Mr Jones has sworn an affidavit with supporting documentation which shows that each of the trucks photographed by Mrs McInness was travelling to 26 Selwyn Ave, and not 20A/B. Accordingly, Mr Jones asserts that these trucks were not trespassing.
[36] The dispute about the extent of the risk, and whether it is continuing, is not a dispute I am able to resolve in the context of a summary judgment application. In the face of such a dispute, I cannot be sure that a permanent injunction is an appropriate remedy.
[37] In particular, I cannot be sure that damages are not an adequate remedy. Mr Blanchard QC submits that the defendants cannot meet all four limbs of the good working rule. He submits that the injury to the plaintiffs’ rights is not small, cannot be estimated in money, and cannot be compensated by a small monetary payment. On the latter point, he submits that it can be inferred from a newspaper article about the scale and expense of the development that a defendant would be willing to pay a substantial sum to ensure continued access to 20A/B in order to complete the development.
[38] But whether the injury to the plaintiffs’ rights are “small”, and whether the injury to the plaintiffs’ rights can be estimated in money, depends on the extent of any ongoing trespass, and the nature of the injury caused to the plaintiffs as a result. An ongoing and daily trespass as alleged by the McInnesses may be at one end of the scale; the occasional trespass by a truck headed for 20A/B, or travelling to
26 Selwyn Ave with goods for 20A/B, would be at the other end of that scale.
[39] The latter type of trespass was at issue in Smith v Smith.16 The defendant was using an access way to access land which was not the dominant tenement. Richmond J found the trespass proved, but reasoned that an injunction was an inappropriate remedy for essentially two reasons. First, it would be almost impossible to establish an infraction of the injunction because of factual ambiguities as to whether any given use of the passage was lawful or not. Second, the plaintiff was upholding a strict legal right, and had not experienced any actual damage from
the trespass.17 The same reasoning could apply equally to this case if that was the
nature of the trespass established at trial.
16 Smith v Smith (1895) 14 NZLR 4 (SC).
17 At 7.
[40] Furthermore, I do not consider that it can be safely inferred that any payment would be large. If Mr Jones’ claim about an alternative access is proved to be correct, then the fact that 161 TDL can obtain access to 20A/B without trespassing will be relevant to the measure of damages. In that case, 161 TDL would only be paying for the occasional trespass by a truck driver who inadvertently strayed onto the 24 Selwyn Ave side of the driveway. I cannot discount the possibility that the adoption of this measure may result in a very small payment to be made.
[41] Finally, the dispute about the extent and nature of the trespass means I cannot be sure that a permanent injunction would not be oppressive to the defendants in the circumstances. This claim was filed on 21 March 2017. The plaintiffs did not seek interim relief to prevent an ongoing trespass, and the construction of the apartments has therefore continued in the interim. Depending on the nature and extent of the trespass, it is at least arguable that a permanent injunction could act in a way that is oppressive to the defendants in those circumstances.
[42] Therefore, even on a narrow application of the “good working rule”, I cannot be sure that damages are not an adequate remedy. If the discretion is applied more widely, then the case against granting a permanent injunction by way of summary judgment becomes even stronger. Whether the grant of an injunction would require the ongoing supervision of the court, the likely duration of any trespass, and the extent to which it would affect the defendants’ development, are all matters which would need to be weighed in the balance.
[43] In summary, the dispute about the nature and extent of any ongoing trespass makes this case inappropriate for disposition by way of summary judgment. The application for a permanent injunction against 161 TDL should not be entered at this stage.
Should an order be made against the Jones Family Trust?
[44] The plaintiffs’ claim for summary judgment against the Jones Family Trust is premised on an ongoing trespass by 161 TDL for which the Jones Family Trust or Mr Jones is liable. Accordingly, the dispute about the nature and extent of any
trespass by 161 TDL, and the appropriateness of injunctive relief, addresses the claim for relief against the Jones Family Trust also.
[45] On that basis alone, the summary judgment application against the Jones Family Trust cannot succeed, and it is unnecessary to address whether the claim would otherwise succeed had an injunction prohibiting 161 TDL been granted.
Result
[46] The application for summary judgment is declined. As is usual in summary judgment applications, costs are reserved. I direct the matter to be set down for a case management conference, with the case officer to confer with counsel as to
available dates.
Edwards J
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