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 for the benefit of 37 owners of surrounding properties. The mortgagees of some of those properties are also interested in the easement.

[2]    The easement that created a right to drain sewage was intended as a temporary requirement pending the connection of the drainage network around the property to the Mangawhai public sewage system. The public system was completed in 2012 and the entire drainage network around the property has now been connected, meaning that the easement has not served any purpose since 2012 and will not serve any future purpose.

[3]    On 8 February 2022, the Council certified pursuant to s 243(e) of the Resource Management Act 1991 that the Council has revoked the condition as to the creation of the easement, meaning that the easement is now cancelled. The applicant requires a declaration so that the Registrar-General of Land will issue a new title that does not contain the easement.

The law

[4]    Section 316 of the Property Law Act 2007 (the Act) provides that a person bound by an easement may make an application to a court for an order under s 317 extinguishing the easement. An order under s 317 may be made if the court is satisfied that the easement ought to be extinguished because of a change since its creation in all or any of the following:

(a)the nature or extent of the use being made by the benefited land, the burdened land, or both;

(b)the character of the neighbourhood; or

(c)any other circumstance the court considers relevant.

Furthermore, under s 317(1)(d), the extinguishment may be ordered if it will not substantially injure any person entitled to the benefit of the easement.

The application for leave to bring an originating application

[5]    The applicant seeks the leave of the Court to commence the proceeding by way of an originating application under Pt 19 of the High Court Rules 2016. It also applies for orders for substituted service rather than personal service on the other landowners.

[6]    The High Court and the District Court have concurrent jurisdiction under s 316 of the Act to make orders under s 317. Although r 20.13 of the District Court Rules 2014 provides that applications made to that court under s 316 are to be brought by way of an originating application, there is no corresponding provision in the High Court Rules related to proceedings under s 316 issued in this Court. I agree with Doogue J’s suggestion in Re Marriner Property Ltd that the  omission of  s 316 of the Act from the equivalent High Court rule (r 19.2) may be an oversight; there is no good reason why applications to this Court under that provision should not also be brought by an originating application.1 As Doogue J observed, the originating application process is more efficient and appropriate to this type of case than a proceeding brought by a statement of claim. The issue in the proceeding is clear; it relies on the straightforward application of statutory provisions to undisputed and uncomplicated facts. There is no need for discovery or any of the other trappings of a general proceeding in the court and the interests of the surrounding property owners would not appear to be affected by the extinguishment of the easement.

[7]    In those circumstances, I consider that, consistently with what has become the usual practice in this Court, it is in the interests of justice and appropriate for leave to be granted to commence this proceeding by an originating application.

1      Re Marriner Property Ltd [2020] NZHC 1747 at [31].

Applications for direction as to service

[8]    The applicant is required by s 316(3) of the Act to serve the application on the Council, and it is appropriate that, although their interests will be affected inconsequentially if at all, the respondent property owners should also be served.

[9]    I am satisfied, however, that in the circumstances it would be unduly onerous and unnecessary for the applicant to undertake personal service on each of the owners of the properties identified. Except for those respondents that are incorporated bodies, the applicant does not know the current occupations or addresses of the named respondents.

Orders

[10]   Accordingly, I grant leave under r 19.5 of the High Court Rules 2016 permitting this proceeding to be commenced by originating application on the grounds that the interests of justice require it.

[11]On the application for an order for substituted service, I direct that:

(a)personal service shall be dispensed with in relation to all respondents other than the 38th respondent, the Kaipara District Council; and

(b)the applicant shall deliver by “track and trace” courier, a service copy of the originating application, the affidavit of Daniel Roy Maloney sworn on 5 May 2022 in support of the application and this judgment to the addressed properties of which the respondents are the respective registered proprietors.

Costs

[12]There are no issues as to costs in this proceeding.

Toogood J