Nicholas v Carter
[2025] NZHC 1376
•27 May 2025
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 along” the predominant land, and entitled the public to visit retail premises fronting onto the lane.3 This Court held the erection of a wall along a substantial portion of the boundary of the lane, and also the placing of barrows for retail activities, would amount to a substantial interference with the right—the interference involved both lateral passage along the lane as well as passage up and down the lane.
1 Elizabeth Toomey and John Burrows (eds) New Zealand Land Law (3rd ed, Thomson Reuters, Wellington, 2017) at [10.4.01(b)], citing Shoesmith v Byerly (1873) 28 LT 553.
2 Emmons Developments (NZ) Limited v RFD Investments Limited HC Christchurch CP 42/01, 4 July 2001.
3 At [20].
Occurrences on the driveway
[13] The substantive evidence in this proceeding is an affidavit of the first-named plaintiff, Paul Nicholas. Through narrative evidence and exhibits including numerous photographs, Mr Nicholas establishes a number of matters including:
(a)since the defendant purchased no 71 in October 2024 he has repeatedly parked vehicles on the turning bay preventing access to the turning bay for 149 out of 153 days up to 6 April 2025;
(b)on two occasions in January 2025 the defendant blocked the driveway, preventing Mr Nicholas’s access to or from his property; and
(c)on 10 April 2025 the defendant installed a fence around the turning bay, and along the driveway between the houses at no 71 and no 73, together with a sign purporting to prohibit persons from entering the area behind the fence without permission.
[14] Mr Nicholas refers to discussions had with the defendant which indicate an intention by the defendant to block access to the turning bay from time to time. Mr Nicholas exhibits correspondence between his former solicitors and solicitors acting for the defendant at the time (November 2024) referring to a belief on the part of the defendant that he is entitled to exclude the turning bay from the right of way. The defendant has also, Mr Nicholas deposes, told Mr Nicholas there will be a carport erected on the turning bay. Mr Nicholas deposes also that in November 2024 the defendant showed him an aerial view image of the properties and asserted the correct legal boundary was 1.5 metres into no 69’s property.
[15] Mr Farrell, for the plaintiffs, referring to Todd on Torts, identifies that the concept of a private nuisance involves an unreasonable interference with a person’s right to enjoyment of an interest in land.4 An alternative formulation to the plaintiffs’ claim rather than nuisance would be to characterise the defendant’s actions as derogating from the grant effected in the easement certificate.
4 Stephen Todd (ed) Todd on Torts (9th ed, Thomson Reuters, Wellington, 2023) at [9.2.1].
Interlocutory relief
[16] The plaintiffs, by their interlocutory application, seek orders that the defendant, pending a final hearing of the plaintiffs’ claim:
(a)remove all fencing, vehicles and other items that inhibit the plaintiffs’ reasonable use of the right of way created by easement;
and
(b)refrain from interfering with the plaintiffs’ reasonable use of the right of way created by easement.
[17] The plaintiffs invoke the court’s power under r 7.53 High Court Rules 2016 to grant an interlocutory injunction.
[18] Mr Farrell submits, adopting the settled test in relation to interim injunctions, that:5
(a)the plaintiffs have established there is a serious question to be tried or, put another way, their claim is not vexatious or frivolous;
(b)the balance of convenience (having regard to the impact on parties of the granting or refusal to grant an order) favours the plaintiffs; and
(c)the overall justice of the case favours the plaintiffs.
[19] At the Court’s direction the interlocutory application has proceeded on notice. After attempts to serve the proceedings on the defendant personally, the defendant was served by substituted service. Pursuant to Court directions, substituted service was of the documents in the proceeding, including notice of this hearing, and was effected on 15 May 2025.
5 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 140 (CA); and NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90, (2013) 13 TCLR 531, at [12].
[20] The defendant has taken no formal step in the proceeding but this morning contacted the registry to seek an adjournment of today’s hearing. He explained that he had received the served documents last week, that he travelled to Wellington to engage a barrister but the barrister has not picked up instructions and Mr Nicholas was now still in Wellington unable to access the served documents.
[21] Having regard to Mr Carter’s resistance to being served at all with the documents in April 2025, his subsequent failure to enter a formal appearance since substituted service, and the evidence to which I have referred, I refused to grant an adjournment which would have imposed wasted costs on the plaintiffs and further delayed their remedy.
Is it appropriate the plaintiffs have their application for interim relief proceed today?
[22] The defendant, having been notified that he could appear by telephone this afternoon, subsequently did not. Instead his son, Mr Joshua Jackson, appeared (on behalf of his father) and sought an adjournment explaining that his father was now unavailable on a boat and that it appears he has only just received the documents back from the barrister involved. I indicated to Mr Jackson I was not granting an adjournment and was proceeding this afternoon. Mr Jackson indicated he thought this was strange. In a further exchange with him matters were not taken any further and he then left the Court. I proceeded in the absence of the defendant.
Discussion
[23] The entitlement of the plaintiffs to the full and uninterrupted enjoyment of their right of way over the turning bay is clearly established for the purposes of interim relief.
[24] With the evidence of the fencing off of the turning bay, preceded by other interferences with the plaintiffs’ use of the turning bay, the plaintiffs have established there is a serious question to be tried, whether it is put as a matter of nuisance or of derogation of the grant.
[25] The balance of convenience clearly favours the plaintiffs. The purpose of creating easements along the driveway, and thereby restricting the use the registered proprietors can make of their own land, was to facilitate the passage and ease of passage of vehicles along the driveway. The respective owners are legally required to respect those obligations. Significantly, in a letter from the defendant’s solicitors to the plaintiffs’ solicitors in November 2024, it was recorded on behalf of the defendant:
[o]ur client has no intention of fencing off the turning bay and he is aware of the definition of a turning bay and the meaning of a Right of Way. Our client advises that he has always complied with his responsibilities under the right of way…
[26] There is, of course, a mandatory aspect to the proposed interim injunction in that the defendant would be required to remove fencing he erected on 10 April 2025, together with any other items blocking the turning bay. But had the defendant not taken those steps (in contradiction of his lawyer’s previous letter) the status quo the Court would have been dealing with was an unfenced turning bay—the injunction sought would then have been purely prohibitory. The fencing in question is by its nature temporary and easily removable.
[27] Should an interim injunction not be granted, the continued impact on the plaintiffs is significant. Their ability to turn on the steep driveway and drive out forwards remains blocked, contrary to the clear intention of the easement. The impact of an interim requirement on the defendant to provide uninterrupted access over the turning bay to the plaintiffs appears to carry little risk of interference with his entitlements given the terms of the easement. There is certainly no evidence to establish any real detriment.
[28] The plaintiffs have provided an undertaking as to damages. Mr Nicholas has confirmed the plaintiffs own no 73 without a mortgage.
[29] Finally, the overall justice favours the granting of an interim injunction. Were the defendant to seek to advance some justification for blocking the turning bay, he will have the opportunity to do so in the substantive proceeding which, by co-operation between the parties could be brought on promptly as a short cause hearing. But, to date, through his initial resistance to being served with documents at all and now,
through his failure to formally respond to the interlocutory application, any justification he might advance for his actions would involve speculation.
[30]I accordingly conclude the plaintiffs are entitled to interim relief.
Costs
[31] The merits of the present application are capable of consideration for the purpose of costs independently of the substantive outcome of this proceeding.
[32] The plaintiffs have succeeded on their application and it is appropriate that they have costs and disbursements of the interlocutory application, and the order to be sealed on the interlocutory application.
[33] I have explained to Mr Farrell that, although he has presented a detailed table of cost items for approval in relation to costs, a number of the items sought in fact relate to the substantive proceeding which will not be allowed in relation to this interlocutory application.
[34] Costs and disbursements will be fixed in a total sum of $8,809.50 as calculated in Schedule A hereto.
Result
[35]I order:
(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;
(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;
(c)the defendant is to pay to the plaintiffs the costs of the interlocutory application together with their reasonable disbursements incurred in relation to the interlocutory application, fixed in a total sum of
$8,809.50.
Addendum
[36] On completing the oral judgment I have delivered, Mr Farrell made an oral application for an order for substituted service of the sealed order that will now be drawn up. The order for substituted service is clearly justified having regard to the evidence that led to the making of the previous interlocutory order for substituted service dated 15 May 2025.
[37] I accordingly make an order that personal service of the sealed order just referred to is dispensed with. Service of the sealed order is to be effected in the manner identified in paragraph 3(b)(i) to (iii) of the previous order but now referring only to a copy of the sealed order being left either with an adult occupant or taped to a fence rather than the fence outside the property in a sealed envelope for the attention of the defendant. The other terms of the order of 15 May 2025 will continue to apply.
Osborne J
Solicitors:
Pearse Martin Farrell, for Plaintiffs
Copy to:
John Carter, Defendant
Schedule A
| Item No: | Sch 3 Description | Item Type | Time | Total |
| 22 | Filing interlocutory application | Application for interim injunction | 0.6 | $1,434.00 |
| 30 (by analogy) | Preparation of affidavit | Affidavit of Paul Gerard Nicholas | 1 | $2,390.00 |
| 24 | Preparation of written submissions | Submissions | 1.5 | $3,585.00 |
| 26 | Appearance at hearing | Hearing on 27 May 2025 | 0.25 | $597.50 |
| 29 | Sealing order or judgment | Sealing order for interim injunction | 0.2 | $478.00 |
| Total 2B costs application for interim injunction Disbursements: interim injunction application | $8,484.50 | |||
| Filing fee: interlocutory application (injunction) | $260.00 | |||
| Seal order for interim injunction | $65.00 | |||
| Total disbursements for application for interim injunction Total costs and disbursements | $325.00 $8,809.50 |
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