NPNZ Investments Limited v Nelson HC Hamilton CIV 2010-419-692

[2010] NZHC 955

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2010-419-692

BETWEEN  NPNZ INVESTMENTS LIMITED Plaintiff

ANDB A NELSON, J K NELSON & M W CRAWFORD

Defendants

Hearing:         15 June 2010

Appearances: A K Hough and B M Easton for Plaintiff

M D Branch and S J Rawcliffe for Defendants

Judgment:      15 June 2010

JUDGMENT OF COOPER J ON

WITHOUT NOTICE APPLICATION FOR INTERIM INJUNCTION

This judgment was delivered by Justice Cooper on

15 June 2010 at 3.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Grimshaw & Co., PO Box 5115, Tauranga

Harkness Henry, Private Bag 3077, Hamilton 3240

NPNZ INVESTMENTS LIMITED V NELSON HC HAM CIV-2010-419-692  15 June 2010

[1]      The  plaintiff  in  this  proceeding  owns  land  at  55  St  Andrews  Terrace, Hamilton which has been developed for residential purposes.   The directors and shareholders of the plaintiff are Mr Graham Boal and his wife, Ruth Elizabeth Boal. Until 27 November 2009 when they transferred it to the plaintiff, they owned 55 St Andrews Terrace personally.  It is one of two sites held on a cross lease, the other property being 57 St Andrews Terrace.   The latter property is owned by the defendants.

[2]      Mr and Mrs Boal are concerned about building works being erected on the defendants’ property.  They say that the their consent was required under the cross lease and under the Council’s District Plan.  They allege that the former consent was never obtained by the defendants and that although the defendants obtained resource consent, that was as a result of forging their signatures giving their consent on documents that were submitted to the Hamilton City Council to obtain the resource consent.

[3]      The proceeding was commenced on 10 June 2010 in conjunction with a without notice application for an interim injunction.  The application sought that the defendants be prohibited from carrying out any building work whatsoever on 57 St Andrews Terrace until further order of the Court.

[4]      The matter was placed before me for consideration on 11 June 2010.  Having read the application and supporting affidavits I issued a minute on that day stating that I was not prepared to grant the without notice application in the absence of service on the defendants and their appearance at least on a Pickwick basis.  I also indicated that I was not satisfied that the undertaking as to damages that had been provided  was  sufficient.    I  directed  that  the  papers  should  be  served  on  the defendants and that the matter should be called before me at 9.30 a.m. today.  I am grateful that counsel for the defendants have been able to appear at short notice and for the helpful memorandum provided by Mr Branch.

[5]      When the substantive hearing takes place there will be a sharp conflict in the evidence as to whether or not Mr and Mrs Boal granted consent to the proposal. They say they did not.  The defendants will assert that they did.  Mr Boal maintains that  there  were  discussions  and  that  matters  were  left  on  the  basis  that  the defendants’ architect would contact them to give some reassurance that, as a result of the proposed building works, there would be no invasion of their privacy.  The plans that they had seen at the stage of the discussions that took place in October 2009 were in Mr Boal’s words “un-dimensioned”.  The architect did not contact them for further discussion and Mr Boal’s evidence was that when the Council forwarded copies of the plans they showed that they had been signed by someone else in the names of his wife and him.

[6]      Mr  Boal  now  complains  that  the  building  work  being  implemented  will impact on the privacy of the plaintiff’s property and that, because of the bulk and location of the structure, the building is “looming” over the plaintiff’s property.

[7]      The plaintiff’s position in relation to the consent issue is supported by the evidence  of  a  Michael  Maran,  who  describes  himself  as  a  “graphologist”. Mr Branch  was  critical  of  Mr Maran’s  qualifications  and  expertise,  but  for  the purposes of an application such as the present it is sufficient to record Mr Maran’s evidence that there is “a 90 per cent indication that the Boals’ signatures on the Consent Form were forged by another person”.

[8]      There seems no doubt that the consent of the plaintiffs was required under both the cross lease and, on the view taken by the Hamilton City Council, under the District Plan before the application for resource consent could be dealt with on a non-notified basis.   The latter application was evidently necessary because of an encroachment by the deck on the new structure into a side yard which the Council thought needed resource consent.   Mr Branch  noted that the defendants did not necessarily agree that resource consent was required, but since the Council had taken that view, they had made the necessary application.

[9]      In all the circumstances, it is plain that there is a serious question to be tried. More difficult issues arise in respect of the balance of convenience and in this

respect the plaintiffs rely on the fact that they have not given consent to what is, on the evidence of the photographs attached to Mr Boal’s affidavit of 10 June 2010, a reasonably substantial structure in the course of development close to the boundary between the two properties.   The plaintiff says that unless the building works are stopped now the plaintiffs will suffer the detriment that by the time any substantive hearing is able to be held a Court might be reluctant to order that the structure be altered so as to reflect a design with which the plaintiffs would have agreed had its consent been sought.  In this respect Mr Hough emphasises that it is not simply the fact that resource consent was needed for part of the structure, but also that the plaintiff’s consent was required under the cross lease.  He argues that consent could reasonably have been withheld for a building with such a dominant affect on its neighbour as the structure being erected appears to have.

[10]     Mr Branch referred to the fact that, as was apparent from the papers filed by the plaintiffs, the defendants had been prepared to undertake not to do any further work on the deck for which resource consent was necessary, for a period of some six weeks, a position which the defendants maintain.   He referred to the inevitable adverse consequences of stopping building work (other than in respect of the deck), given that there is an ongoing development on the site and the house is currently being roofed.

[11]     Mr Branch also submitted that damages would be an adequate remedy for the plaintiff and noted in his memorandum that the defendants were even prepared to buy the plaintiff’s property on a valuation basis which assumed that the present structure had not been erected.

[12]     I  was  advised  by  the  Registrar  that  a  fixture  could  be  allocated  for  a substantive hearing of the application for injunction on a defended basis on 8 July

2010.    In  those  circumstances  I  have  come  to  the  view  that  the  balance  of convenience favours the grant of limited relief to the plaintiff pending a substantive hearing.    The plaintiff  would  inevitably face difficulties  in  securing  subsequent alteration of the building if the works were allowed to continue in any significant way and there could well be difficulties in assessing damages in such circumstances. If Mr and Mrs Boal are right in basic claim that their consent was never obtained as

it should have been, that is a position in which the plaintiff should not be placed. Further, I consider that any possible detriment to the defendants can be minimised to an acceptable degree by enabling the roofing work to continue together with, if desired,  temporary  cladding  of  the  exterior  walls,  so  that  the  building  can  be protected from the effects of the weather.   I note also in this context that Mr and Mrs Boal have now given undertakings that they will personally abide by any order that the Court may make in respect of damages and personally pay any judgment against the plaintiff company.   Coupled with the evidence Mr Boal has previously given about the financial position of his wife and himself, I consider that the defendants’ position can be adequately protected by this means.

[13]     Mr Branch  was  critical  of  the  delay  by  the  plaintiff  in  bringing  this proceeding.  He referred to the fact that the demolition work on the dwelling that was previously on the land at 57 St Andrews Terrace was commenced in December 2009 which ought to have alerted the plaintiff to the fact that the project was proceeding. Mr Hough noted, however, that as set out in Mr Boal’s affidavit of 10 June, he had been waiting for the defendants’ architect to make contact with him and did not really appreciate the magnitude of the building that was proposed on the defendants’ property.    Then,  in  late  November  2009  Mr  and  Mrs  Boal  had  moved  from

55 St Andrews  Terrace  leaving  it  tenanted,  going  to  reside  in  Mt Maunganui. Thereafter, according to Mr Boal it was not until May 2010 that he received advice from an agent with whom he had been dealing, that the tenants had given notice to quit because of disturbance arising from the building works.  What followed was a process of inquiry which led Mr Boal to understand for the first time the magnitude of the works proposed, and to discover the alleged “consent” given to the Council by his wife and him.   He contacted a solicitor and there was discussions and correspondence between the solicitors for the parties from early June.

[14]     Mr Branch was critical of the fact that Mr Boal has not given evidence that he was unaware that the building works were proceeding prior to May.  I accept that is the case, but I do not consider that means that in the interests of justice interim relief should be declined.  It is possible that he was unaware of the works prior to then, but possible also that he failed to appreciate the extent of what was proposed.  The effect

of any delay and possible reasons for it are matters that will obviously be of significance at the substantive hearing.

[15]     In the result the without notice application for an interim injunction is granted in these terms:

The defendants, their servants, agents and contractors are prohibited from carrying  out  any building  work  on  57  St  Andrews  Terrace,  St Andrews, Hamilton until further order of the Court with the exception of roofing work and other temporary cladding designed to protect the building from the weather.

[16]     I direct that the application is to be further considered on a defended basis on Thursday 8 July 2010 at 10.00 a.m.  The plaintiff will then be required to satisfy the Court afresh that interim relief should be continued.

[17]     I direct that:

a)        The defendants are to file and serve any affidavits on which they intend to rely on or before Friday 25 June 2010.

b)       The plaintiff may file and serve affidavits strictly in reply on or before

Thursday 1 July.

c)       The plaintiff must file and serve written submissions on or before

1 July, and the defendants must file and serve their submissions on or before Tuesday 6 July.