Nicholas v Carter

[2025] NZHC 2237

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2025-409-176

[2025] NZHC 2237

BETWEEN

PAUL GERARD NICHOLAS and PENNY MARGARET EGGELTON
Plaintiffs

AND

JOHN ANDREW CARTER

Defendant

Hearing:

8 August 2025

Appearances:

E Farrell for Plaintiffs

No appearance by Defendant

Judgment:

8 August 2025

JUDGMENT OF OSBORNE J

Introduction

[1]                 The plaintiffs’ residence at 73 Parklands Drive, Christchurch (No 73) is uphill at the end of a shared driveway. They (with other neighbours) pursuant to a registered easement certificate have a right of way over the driveway.

[2]                 The defendant, in October 2024, purchased a property (71 Parklands Drive (No 71)) part way down the driveway.

[3]                 The defendant promptly thereafter began doing things that prevented access along the driveway, such as parking vehicles on a turning bay on the driveway; blocking the driveway so as to prevent access to or from No 73, and installing a fence around the turning bay and along part of the right of way.

NICHOLAS v CARTER [2025] NZHC 2237 [8 August 2025]

[4]                 In April 2025, the plaintiffs commenced this proceeding and applied for an interim injunction. The court was called upon to order substituted service when the defendant resisted being served at all. Once the defendant was served he took no formal steps.

[5]                 At the hearing of the unopposed interlocutory application I granted injunctive relief in the following terms:1

(a)the defendant is to forthwith remove all fencing, vehicles, and other items that inhibit the plaintiffs’ reasonable use of the right of way created by easement certificate 743845 pending a final hearing of the plaintiffs’ claim; and

(b)the defendant is to refrain from interfering with the plaintiffs’ reasonable use of the right of way created by easement certificate 743845 pending a final hearing of the plaintiffs’ claim.

[6]                 The defendant did not file a defence. The proceeding was therefore set down for formal proof today. In addition to the evidence filed in support of the interlocutory application, the plaintiffs have provided an updating affidavit and filed evidence of (substituted) service of the relevant documents upon the defendant.

The plaintiffs’ rights

[7]                 Pursuant to the easement certificate and to s 297 Property Law Act 2007, the plaintiffs, the defendant and a neighbour (as respectively the owners of No 73, No 71 and No 69) have the right to go, pass and re-pass over and along the land over which the right of way was granted.

[8]                 That land is shown in Table 1 below, with the area circled in red representing the turning bay. Further detail in relation to the driveway and the rights and obligations involved is set out in the interlocutory judgment.

1      Nicholas v Carter [2025] NZHC 1376 at [35].

The properties explained

1. As the lots are numbered on Table 1:

(a)Lot 15 is the plaintiffs’ No 73;

(b)Lot 14 is the defendant’s No 71;

(c)Lot 13 is No 69, belonging to another neighbour.

Table 1

Occurrences on the driveway

[10]              I have summarised (above at [3]) occurrences on the driveway to the time of the interlocutory judgment. By his  updating  affidavit,  the  first-named  plaintiff (Mr Nicholas) identifies occurrences in relation to the driveway since the interlocutory judgment, including:

(a)On 29 May 2025 the defendant removed the vehicles parked on the turning bay but then completely fenced off most of the turning bay.

(b)On 16 June 2025 the defendant removed the fencing from the turning bay, making it available for use.

(c)The defendant has still not removed the temporary fencing along the driveway between the houses at Nos 71 and 73, which remains in place—about 50 metres in length and intruding into the approximately

4.6 metre wide driveway by distances between 90 centimetres and

1.5 metres.

[11]              Mr Nicholas refers to continuing difficulties in accessing No 73, with a visitor damaging a wing mirror while trying to avoid the defendant’s “temporary” fence and another visitor parking on the road and walking the 70 metres to No 73.

[12]              Mr Nicholas deposes the defendant’s fencing is not fencing off anything. He exhibits photos which show that.

[13]              Mr Nicholas deposes that, commencing on the day after the interlocutory hearing,  the  defendant  engaged  in  unpleasant  and  abusive  conduct  towards    Mr Nicholas and his wife, which Mr Nicholas details.

Discussion—entitlement to injunctive relief

[14]              The plaintiffs are clearly entitled to permanent injunctive relief. The defendant’s conduct in the period before the interlocutory hearing constituted a nuisance through the defendant unreasonably interfering with the plaintiffs’ right to

use and enjoy their interest in land. The defendant’s conduct since the interlocutory order was made and served, particularly through his failing to remove the fencing along the driveway, constitutes a continuing, blatant disregard not only of the plaintiffs’ property rights but also this Court’s order.

[15]A permanent injunction will issue.

Costs

Application

[16]              The plaintiffs seek costs only on a 2B basis, together with their reasonable disbursements as set out in Schedule A to this judgment.2 The costs now sought do not include the costs and disbursements already awarded in terms of the interlocutory judgment.

[17]              To the extent that costs have been incurred by the plaintiffs in returning to Court to have the injunction made final, that has partly been caused by the defendant ignoring or disobeying the interlocutory order. On that basis, the plaintiffs might have sought to have some aspects of their legal attendances made the subject of an indemnity award under r 14.6(4)(b) High Court Rules 2016. As the plaintiffs have not identified any items for such consideration, I will deal with costs on a 2B basis as sought. It should nevertheless be clear to the defendant from these observations that, should the plaintiffs have to seek further assistance from the court to enforce the injunction now issuing, the costs of enforcement will almost inevitably be awarded on an indemnity basis.

Substituted service

[18]              As in relation to the service of the interlocutory order, it is appropriate, having regard to the defendant’s previous conduct in relation to attempts to serve him, to make an order for substituted service of the further orders now being made.

2      High Court Rules 2016, Category 2 under r 14.3(1) and band B under r 14.5(2).

Result

[19]I order:

(a)the defendant is forthwith to remove all fencing, vehicles, and other items that inhibit the plaintiffs’ reasonable use of the right of way created by easement certificate 743845;

(b)the defendant is to refrain from interfering with the plaintiffs’ reasonable use of the right of way created by easement certificate 743845;

(c)the defendant is to pay the plaintiffs (in addition to the costs and disbursements already awarded in relation to the interlocutory application) the remaining costs and disbursements of this proceeding in a total sum of $23,632.93; and

(d)personal service of these orders is dispensed with, with service of the sealed  order  to  be  effected  in  the  manner   identified   in paragraph [3(b)(i)–(iii)] of the original 15 May 2025 substituted service order but now referring only to a copy of the sealed order being left either with an adult occupant or taped to the door of No 71 Parklands Drive, rather than the fence outside the property, in a sealed envelope for the attention of the defendant.

Osborne J

Solicitors:
Pearse Martin Farrell, for Plaintiffs

Copy to:
John Carter, Defendant

Schedule A