MD22 Limited v Stormont - [2022] NZHC 1166

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000721

[2022] NZHC 1166

UNDER Part 19 of the High Court Rules 2016

IN THE MATTER OF

an application for leave to commence a proceeding by way of an originating

application and for directions as to service

BETWEEN

MD22 LIMITED

Applicant

AND

GLENNIS MARJORIE STORMONT

First Respondent

cont’d over

Hearing: On the papers

Counsel:

P Murray for the applicant

Judgment:

25 May 2022

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 25 May 2022 at 11:00 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar Date……………………………..

Solicitors/Counsel:
Lockhart Legal, Auckland P Murray, Auckland

MD22 LTD v STORMONT [2022] NZHC 1166 [25 May 2022]

CHRISTOPHER JOHN ARTHUR and JOANNE MARY NAISH
Second Respondents

HEATHER JOYCE TOMASON, BRIAN GILLESPIE MOYLE and SHONA JOY FOGDEN

Third Respondents

LISA CHEREE BRINGANS

Fourth Respondent

KIMBERLEY JANE ROOZENDAAL, TRENT PAUL ROOZENDAAL

Fifth Respondents

SHANA GENIE LOUISE VALENTE and GAVIN GEORGE FINDLAY

Sixth Respondents

JASMINE HERNANDEZ ODI and JOEY DE JESUS ODI

Seventh Respondents

ZEISHA AMY FLAVELL and LUKE JOHN WISEMAN

Eighth Respondents

JOANNA MARY CLAYDON

Ninth Respondent

HENRY GEORGE ROGERS and JENNIFER MARIE ROGERS

Tenth Respondents

GALLOP 2021 LIMITED

Eleventh Respondent

PATRICK TROY MATTHEWS

Twelfth Respondent

JONATHAN WILLIAM CLARKE and REBECCA FRANCES HINE

Thirteenth Respondents

JUDITH LORRAINE CASFORD and CHARLES NEIL CASFORD

Fourteenth Respondents

RONWYN DELYS ROWAN and FRASER REGINALD ROWAN and
NEW ZEALAND TRUSTEE SERVICES LIMITED

Fifteenth Respondents

SHANE ROBERT GROWDEN and KIM MARIE GROWDEN

Sixteenth Respondents

ANNE COLLEEN THOMPSON and BARBARA HARRIET KELLY

Seventeenth Respondents

PETER DOUGLAS FREDERICK ADKINS, ADRIAN ROSS BUDDEN and CHERIE

LORRAINE ADKINS
Eighteenth Respondents

ALISON DALE ROBINSON and KYLE GEOFFREY ROBINSON

Nineteenth Respondents

REGAN EDWIN MILLER, AMANDA ROCHELLE MILLER and REBECCA ELLEN HARRISON

Twentieth Respondents

KAREN EILEEN KILMARTIN

Twenty-First Respondent

FLORAME RECOPELACION WOTTON and MICHAEL JAMES DONALDSON

Twenty-Second Respondents

MARGARET WINIFRED MCKERROW

Twenty-Third Respondent

PATRICIA CELINE TINDILL and MICHAEL TINDILL

Twenty-Fourth Respondents

MARY-ANNE BOYD

Twenty-Fifth Respondent

ANTHONY BRUCE HOWARD, DEBORAH JEANE RUSSELL and CORPORATE SURETIES LIMITED

Twenty-Sixth Respondents

PHILIP DONALD HISLOP and ALEXANDRA HISLOP
Twenty-Seventh Respondent

PAULINE SKEATES, GRAEME HAYWARD SKEATES and AUBURN TRUSTEES 3 LIMITED

Twenty-Eighth Respondent

MELISSA JOYCE MAC, CHRIS MAC and JOHN MURU WALTERS

Twenty-Nineth Respondents

BELK PROPERTIES LIMITED

Thirtieth Respondent

ALAN ALBERT BRAY-GUNN and NATAILE FRANCES BRAY-GUNN

Thirty-First Respondents

KAREN JOAN HARBERS and PAUL ARTHUR ROSIER

Thirty-Second Respondents

DANKIR SERVICES LIMITED

Thirty-Third Respondent

MEENA PANDEY, LIAM GORDON GRIFFIN and DYLAN MAURICE GRIFFIN

Thirty-Fourth Respondents

PATRICIA ANN STIRLING, DEAN

CLYDE STIRLING, TROY ANTHONY STIRLING and KATHRYN DENISE STIRLING

Thirty-Fifth Respondents

MARIAN KAY SCHEDEWY and DONALD JOSEPH SCHEDEWY

Thirty-Sixth Respondents

SARAH ROGERS and NIGEL MAURICE ROGERS

Thirty-Seventh Respondents

KAIPARA DISTRICT COUNCIL

Thirty-Eighth Respondent

Introduction

[1] The applicant, MD22 Ltd, is the registered proprietor of a property on the corner of Molesworth Drive and Estuary Drive, Mangawhai (the property) on which the applicant intends to undertake a commercial development. The property is subject to a drainage easement created by Easement Instrument 6441085.35 (the easement) which was initially…

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 MD22 Limited v Stormont

Details

AGLC: MD22 Limited v Stormont [2022] NZHC 1166
Case: [2022] NZHC 1166
Decision Date: 25 May 2022

CaseChat Overview and Summary

In the case of MD22 Limited v Stormont, the High Court of New Zealand Auckland Registry was tasked with considering an application by MD22 Limited for leave to commence a proceeding to extinguish a drainage easement over a property they own, located on the corner of Molesworth Drive and Estuary Drive, Mangawhai. The easement, initially created for the benefit of 37 owners of surrounding properties, was intended as a temporary measure until the property could be connected to the public sewage system. The property was connected to the public system in 2012, rendering the easement obsolete. The Council subsequently certified that the easement was revoked, and MD22 Limited sought a declaration to remove the easement from their title.

The legal issues before the Court were whether leave should be granted for the proceeding to be brought by way of an originating application, and if substituted service could be used instead of personal service for the respondents. Section 316 of the Property Law Act 2007 allows for the extinguishment of an easement if certain conditions are met, including that it will not substantially injure any person entitled to the benefit of the easement.

Justice Toogood determined that the use of an originating application was appropriate for this case due to the straightforward application of statutory provisions to undisputed facts. The Court found that the omission of section 316 of the Act from the equivalent High Court rule might be an oversight, but it was in the interests of justice to permit the use of an originating application for this type of case. The Court also ruled that substituted service was appropriate in this case, as personal service would be unduly onerous and unnecessary, except for the Kaipara District Council, which should receive personal service.

The Court granted leave for the proceeding to be commenced by an originating application and directed that substituted service be used for all respondents except the Kaipara District Council. The applicant was required to deliver a service copy of the originating application and supporting documents by "track and trace" courier to the addressed properties of the respective registered proprietors. There were no issues as to costs in this proceeding.

Orders