Nicholas v Carter - [2025] NZHC 1376

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2025-409-000176

[2025] NZHC 1376

BETWEEN
PAUL GERARD NICHOLAS and ANOR

Plaintiffs

AND

JOHN ANDREW CARTER

Defendant

Hearing: 27 May 2025

Appearances:

E Farrell for Plaintiffs

No appearance by Defendant

Judgment:

27 May 2025

ORAL JUDGMENT OF OSBORNE J

Introduction

[1] The plaintiffs seek injunctive relief against the defendant for interference with a right of way on the shared driveway leading to their property.

Rights of way are created

[2] The plaintiffs are the registered proprietors of 73 Parklands Drive, Christchurch (no 73), being their family home.

[3] The defendant is the registered proprietor of 71 Parklands Drive, Christchurch (no 71), having purchased it in October 2024.

[4] Number 71 and no 73 are located down a steep 120 metre long driveway which provides access to no 71 and no 73, as well as to 69 Parklands Drive (no 69). The driveway begins at Parklands Drive and ends at the boundary of no 73.

NICHOLAS v CARTER [2025] NZHC 1376 [27 May 2025]

[5] The driveway itself is subject to a right of way created by a registered easement certificate.

[6] Located on the driveway is a turning bay. The turning bay is partly located within the boundaries of no. 69 and no. 71. The turning bay may be used by drivers (including the plaintiffs) to turn their cars in order to avoid reversing down the driveway. The turning bay is the subject of a second right of way created by the same registered easement certificate.

[7]The turning bay is shown circled red in table 1 below.

Table 1

[8] On table 1 the relevant properties are identified by their lot numbers—lot 15 being no 73, lot 14 being no 71, and lot 13 being no 69.

[9] The easement certificate, in relation to the turning bay, requires lot 14 (no 71) to provide a right of way to lots 12, 13 and 15 over the area shown in blue in table 1.

The plaintiffs’ rights

[10] Pursuant to s 297 Property Law Act 2007 and the implied covenants in Schedule 5 of the Act, the owners of no 69, no 71 and no 73 have the right to go, pass, and re-pass over and along the land over which the right of way was granted. That right is exercisable at all times, by day and night, and is exercisable with or without vehicles.

[11]As noted in New Zealand Land Law:1

Whether a particular interference is unlawful is a question of fact to be determined on an examination of the actual right of way, the land over which it exists, and the general circumstances of the case.

[12] The entitlement to be free from substantial interference was illustrated in Emmons Developments (NZ) Limited v RFD Investments Limited.2 There, a right of way along a public lane in Christchurch granted “full and free right of way and passage
… through, over, upon and…

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 1376
Case: [2025] NZHC 1376
Decision Date: 27 May 2025

CaseChat Overview and Summary

The plaintiffs, Paul Gerard Nicholas and another, sought injunctive relief against the defendant, John Andrew Carter, for interference with a right of way on a shared driveway leading to their property at 73 Parklands Drive, Christchurch. The driveway, which also provides access to 71 Parklands Drive (owned by the defendant) and 69 Parklands Drive, is subject to a registered easement certificate that grants the right of way. The plaintiffs' claim includes an allegation that the defendant has repeatedly parked vehicles on a turning bay, blocked the driveway, and installed a fence around the turning bay, thus interfering with their use of the right of way. The legal issues before the court included whether the defendant's actions constituted an unlawful interference with the plaintiffs' right of way and whether an interim injunction should be granted to prevent further interference.

The court found that the plaintiffs' entitlement to the full and uninterrupted enjoyment of their right of way was clearly established. The evidence presented, including the fencing off of the turning bay and other interferences, established a serious question to be tried. The court considered the balance of convenience and found it clearly favoured the plaintiffs, given the purpose of the easement was to facilitate passage along the driveway. The court also noted the mandatory aspect of the proposed injunction, which required the removal of the fencing, but found this to carry little risk of interference with the defendant's entitlements. The plaintiffs' undertaking as to damages and the lack of evidence of any real detriment to the defendant further supported the granting of interim relief. The court concluded that the overall justice favoured granting the interim injunction. The defendant's failure to formally respond to the interlocutory application left any potential justification for his actions speculative.

The court ordered that the defendant remove all fencing, vehicles, and other items that inhibit the plaintiffs' reasonable use of the right of way, and refrain from interfering with the plaintiffs' reasonable use of the right of way, pending a final hearing of the plaintiffs' claim. The court also ordered the defendant to pay the plaintiffs' costs of the interlocutory application and their reasonable disbursements incurred in relation to the interlocutory application, fixed in a total sum of $8,809.50. The court further ordered that personal service of the sealed order be dispensed with, and service be effected by leaving a copy of the sealed order either with an adult occupant or taped to a fence.

Orders