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

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…

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 Nicholas v Carter

Details

AGLC: Nicholas v Carter [2025] NZHC 2237
Case: [2025] NZHC 2237
Decision Date: 8 August 2025

CaseChat Overview and Summary

In the High Court of New Zealand Christchurch Registry, the plaintiffs, Paul Gerard Nicholas and Penny Margaret Eggleton, sought an injunction against the defendant, John Andrew Carter, to prevent him from obstructing their right of way over a shared driveway. The plaintiffs' residence at 73 Parklands Drive, Christchurch, is at the top of a driveway shared with other properties. They have a registered easement certificate allowing them to use the driveway. The defendant, who owns a property partway down the driveway, began obstructing the plaintiffs' access by parking vehicles and installing a fence. The plaintiffs applied for an interim injunction, which was granted, ordering the defendant to remove the obstructions and refrain from interfering with their use of the driveway.

The court was required to decide whether the plaintiffs were entitled to a permanent injunction and whether the defendant's conduct constituted a nuisance. The plaintiffs argued that the defendant's actions were unreasonable and interfered with their right to use and enjoy their property. The court found that the plaintiffs were entitled to permanent injunctive relief, as the defendant's conduct before and after the interlocutory hearing constituted a nuisance and a blatant disregard of the court's order. The court also considered the plaintiffs' request for costs and determined that the defendant should pay the plaintiffs' costs of the proceeding, in addition to the costs already awarded in relation to the interlocutory application.

The court issued a permanent injunction, ordering the defendant to remove all fencing, vehicles, and other items that inhibit the plaintiffs' reasonable use of the right of way created by the easement certificate. The defendant was also ordered to refrain from interfering with the plaintiffs' reasonable use of the right of way. The defendant was ordered to pay the plaintiffs' costs, totaling $23,632.93, in addition to the costs already awarded. The court also made an order for substituted service of the sealed order, as the defendant had previously resisted being served.

Orders