Remarkables Park Limited v Queenstown Airport Corporation Limited

[2025] NZHC 3325

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2023-425-012

[2025] NZHC 3325

BETWEEN

REMARKABLES PARK LIMITED

First Plaintiff

HESED HOLDINGS LIMITED
Second Plaintiff

AND

QUEENSTOWN AIRPORT CORPORATION LIMITED

Defendant

Hearing:

2 October 2025

Appearances:

D J Neutze and A C Elia for Plaintiffs

V L Heine KC and S R A Hayman for Defendant

Judgment:

4 November 2025

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 4 November 2025 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

REMARKABLES PARK LIMITED v QUEENSTOWN AIRPORT CORPORATION LIMITED [2025] NZHC

3325 [4 November 2025]

[1]    The plaintiffs are the owners of land to the south of Queenstown Airport that is burdened by a land covenant limiting land use activities. Queenstown Airport Corporation Ltd (QAC) is the registered proprietor of the benefitted land. The plaintiffs seek orders under s 317 of the Property Law Act 2007 modifying the covenant, including to extend the activities and land uses to which it can be put to include commercial and service activities and visitor accommodation.

[2]    The grounds upon which the plaintiffs rely include s 317(1)(d) of the Property Law Act, which allows the Court to modify a covenant if it is satisfied the proposed modification will not substantially injure any person entitled to the benefit of it. QAC pleads that s 317(1)(d) does not apply as the covenant will substantially injure it by reducing the protection to its airport operations which the covenant confers. I understand QAC’s concerns include noise sensitivity.

[3]    QAC owns land to the north of Queenstown Airport known as the Northern Precinct. It is roughly equidistant from the airport as the burdened land and is partly within the Outer Control (Air Noise) Boundary (OCB). QAC has for some time been exploring options to develop the Northern Precinct for yard-based industrial, commercial, retail/office and light industrial activities within the OCB. The plaintiffs consider that QAC’s plans to develop the Northern Precinct are directly relevant to QAC’s pleading that it will be substantially injured if the covenant is modified and the plaintiffs are able to undertake the same or similar activities on their land.

[4]    The proceeding is advanced and has been set down for trial commencing February 2026. The applications before me are:

(a)for particular discovery of documents set out in the schedule to the application; and

(b)to modify a confidentiality protocol to enable the plaintiffs’ directors and executive officers to inspect further confidential documents that QAC has agreed to discover as well as any documents discovered by QAC pursuant to orders made on this application.

[5]    During the course of the hearing of these applications Mr Neutze advised that the plaintiffs would be agreeable to discovery, limited as follows:

(a)documents relating to QAC’s plans to develop its non-aeronautical land assets to the north of the runway within the OCB, including in respect of Lots 8, 11-13, DP304345 (Northern Precinct) as follows:

(i)any assessment of environmental effects;

(ii)documents referred to in the Master Plan for 2023-2024, including:

1.   any acoustic reports;

2.   rental car strategy;

3.   lease terms directed at preventing or managing noise sensitivity or complaints; and

(iii)board papers, minutes and resolutions since November 2021 relating to the future development of the Northern Precinct.

The discovery progress to date

[6]    On 16 August 2023 the parties were ordered to provide tailored discovery in 23 categories of documents.  On  7  March  2024,  QAC  provided  discovery.  On  11 September 2024, QAC provided a second tranche of discovery in response to a further discovery request from the plaintiffs.

[7]    On 17 April 2025, the plaintiffs raised discovery issues again, asking QAC to revisit its discovery specifically in relation to documents which had been disclosed by QAC concerning QAC’s consideration of options for developing the Northern Precinct. The documents requested by the plaintiffs were:

(a)Briefs provided to Elliot Sinclair and Colliers which resulted in production of the reports discovered.

(b)Any subsequent or further reports provided by Elliot Sinclair and Colliers regarding development of QAC’s land to the north.

(c)Any briefs to other consultants (eg planning, acoustic, urban design, architectural) regarding development of QAC’s land to the north of the airport and any reports resulting from those briefs, including drafts.

(d)Any internal or external correspondence relating to the above (including internal notes, memoranda, reports, emails, board papers, minutes, or resolutions).

[8]    QAC’s initial response in a letter of 22 May 2025 was that it would not revisit its discovery because it had already made thorough efforts to produce relevant documents responsive to the agreed categories of tailored discovery and would not expend further resources searching for documents that it did not consider were of relevance to the proceeding.

[9]    The plaintiffs’ lawyers responded on 6 June 2025 that QAC’s position was untenable and that the further documents requested fell within the categories of the tailored discovery order. They did not accept QAC’s view that such documents were irrelevant, noting that QAC had already disclosed documents relating to the development of the Northern Precinct and could not now seek to resile from its position as to the relevance of such documents. The plaintiffs confirmed their stance that if QAC maintained its position an application for discovery would be made to the Court.

[10]   QAC then advised on 18 June 2025 that it was willing to take a pragmatic approach to avoid further delays in the proceeding, but that before providing further discovery it required agreement on terms as to the treatment of confidential documents.

[11]   On 4 July 2025, the plaintiffs repeated the request for further discovery in the categories identified in the 17 April 2025 letter, and also identified that the “germane topics” to which the discovery related were:

(a)The nature and location of proposed uses to the North of the main runway in comparison to the uses which [the first plaintiff] seeks to enable on land to the South of the runway;

(b)Any design and acoustic mitigation measures that are or will be applied by QAC to manage the effects of aircraft noise adjacent to the airport’s runway;

(c)Any lease or sale terms specifically directed at preventing or managing noise sensitivity and complaints; and

(d)Any measures which address emissions, glare and bird strike risks adjacent to the airport’s runways.

[12]   On 6 August 2025, QAC agreed to provide some further discovery but not to the extent sought by the plaintiffs. In summary, what QAC agreed was that to the extent that it was proportionate it would provide discovery of documents listed in (a),

(b) and (c) (excluding drafts) of the 4 July 2025 request but would not disclose documents under category (d), which it considered was an excessively broad catch-all category that would potentially capture a large number of documents. QAC says it then carried out a comprehensive process of identifying and reviewing documents, responding to the plaintiffs’ request for further discovery on the basis of that approach.

[13]   On 14 August 2025, the plaintiffs purported to narrow and reframe their request for further discovery in category (d) (which QAC refused to provide) and sought disclosure of documents as described (in what became the schedule to this application). The plaintiffs sought an urgent response, noting that they were required to file and serve any application for further discovery by 3.30 pm on 15 August 2025. On 15 August 2025 this application was filed.

[14]   On 28 August 2025, QAC served a further affidavit of documents which was stated to be made pursuant to the tailored discovery order of 16 August 2025 but which was also the further discovery QAC had agreed to provide in response to the plaintiffs’ requests.

The High Court Rules

[15]   The plaintiffs’ application relies principally on rr 8.18(1) and 8.19 of the High Court Rules 2016.

[16]Rule 8.18 provides:

8.18Continuing obligations

(1)Each party against whom a discovery order is made has a continuing obligation to give discovery and offer inspection at all stages of the proceeding, even if that party has filed and served an affidavit of documents that complies with this subpart.

(2)A party must discover a document if, in the course of complying with an order for tailored discovery, that party becomes aware of a document that is not required to be discovered under the order, but that—

(a)adversely affects that party's own case; or

(b)adversely affects another party's case; or

(c)supports another party's case.

[17]   This rule imposes an obligation upon parties to give continuing discovery at all stages of the proceeding, even if they have already filed and served an affidavit of documents that complies with a discovery order or the documents fall outside the terms of a tailored discovery order but affect the party’s own case or support the case of another party.

[18]   Rule 8.19 is concerned with obtaining further discovery within the scope of a discovery order and reads:

8.19Order for particular discovery against party after proceeding commenced

If at any stage of the proceeding it appears to a Judge, from evidence or from the nature or circumstances of the case or from any document filed in the proceeding, that there are grounds for believing that a party has not discovered

1 or more documents or a group of documents that should have been discovered, the Judge may order that party—

(a)to file an affidavit stating—

(i)whether the documents are or have been in the party's control; and

(ii)if they have been but are no longer in the party's control, the party's best knowledge and belief as to when the documents ceased to be in the party's control and who now has control of them; and

(b)to serve the affidavit on the other party or parties; and

(c)if the documents are in the person's control, to make those documents available for inspection, in accordance with rule 8.27, to the other party or parties.

[19]Applications under r 8.19 are usually determined by applying the principles in

Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd as follows:1

(a)Are the documents sought relevant, and if so how important will they be?

(b)Are there grounds for belief that the documents sought exist? This will often be a matter of inference. How strong is that evidence?

(c)Is discovery proportionate, assessing proportionality in accordance with Part 1 of the Discovery Checklist in the High Court Rules?

(d)Weighing and balancing these matters, in the Court's discretion applying r 8.19, is an order appropriate?

QAC’s opposition

[20]   QAC says the starting presumption is that affidavits of documents already filed are conclusive, so the plaintiffs bear the onus of establishing that the affidavits it has filed are incomplete.2

[21]   QAC also contends that the continuing obligation to provide discovery at all stages of a proceeding needs to be interpreted practically and proportionately because, without care being taken in setting the scope of discovery orders, continuing discovery can impact on pre-trial steps and never end.

[22]   QAC raises relevance as an issue. Counsel referred me to Reynolds v Parklands Properties Ltd in support of a submission that documents which go to QAC’s plans for further development of the Northern Precinct are not relevant to the Court’s inquiry to modify the covenant.3

[23]   QAC also says that proportionality is an issue, and the Court must consider whether it is in the interests of justice to order particular discovery in light of the matters at issue and the time and cost of the particular discovery sought as against the value of the discovery to resolution of the issues in the proceeding. It says that the

1      Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760 at [14].

2      McCullagh v Robert Jones Holdings Ltd [2015] NZHC 1462, (2015) 22 PRNZ 615 at [7].

3      Reynolds v Parklands Properties Ltd [2021] NZCA 394, (2021) 22 NZCPR 516.

concept of proportionality reinforces and sharpens the requirement that a discovery order not be oppressive.4

[24]   QAC says the assessments of relevance and proportionality (together with whether there are grounds for belief that the relevant documents exist) are subject to the balancing exercise through which the Court has an overriding discretion as to whether to make a further discovery order.

[25]   QAC also submits that the Court should not be sympathetic to the plaintiffs who have allowed the discovery process to drift until it has become too late for the Court to order discovery without jeopardising the fixture, and that parties must take responsibility for ensuring that the discovery they expect to receive is provided to them.5

[26]   QAC also says it has undertaken a thorough process in response to the plaintiffs’ requests and that to a substantial degree the plaintiffs are seeking the same documents which for the most part have already been provided. It submits that if further discovery is ordered QAC will be required to repeat the process it has just undertaken to locate further documents which will not bolster the plaintiffs’ case in any significant way. It submits the further discovery is unnecessary because the plaintiffs have been able to serve their evidence, which has included statements from the plaintiffs’ experts addressing the documents recently disclosed by QAC.

[27]   In relation to the plaintiffs’ request for board papers, minutes and resolutions relating to the future development of the Northern Precinct, which it has refused to provide, QAC says such documents are either irrelevant or ordering discovery would not be proportionate. QAC says the time and cost of locating such documents is not justified because it has made no secret of its plans to develop the Northern Precinct and will be addressing that in its evidence.

[28]In summary, QAC resists further discovery because:

4      Southland Building Society v Barlow Justice Ltd [2013] NZHC 1125 at [17].

5      Pero v Mike Pero Mortgages Ltd [2018] NZHC 2176 at [22].

(a)the documents sought are of no or limited relevance to any matter in issue;

(b)it has already provided discovery of the bulk of its documents in the categories sought;

(c)any further discovery would place a disproportionate burden on QAC; and

(d)the plaintiffs’ request is made at a very late stage of the proceeding.

My assessment

[29] I propose to assess the application applying the approach in Assa Abloy to which I have referred in [19].6

Are the documents relevant?

[30]   The tailored discovery order required the parties to disclose documents relating to or touching upon:

11.Any ways in which QAC will be substantially injured by the following land uses in the burdened land:

(i)Recreational Uses and/or Rural Uses and/or utilities; and/or

(ii)Commercial Activity and/or Service Activity; and/or

(iii)Visitor Accommodation Activity provided that Critical Listening Environments are designed, constructed and maintained so that their internal noise level does not exceed 40 dB Ldn where the external dB Ldn is based on that shown on the 2037 Noise Contours.

[31]   To reinforce the importance of the documents sought, Mr Neutze referred to the Supreme Court decision in Synlait Milk Ltd v New Zealand Industrial Park Ltd where it was noted that s 317 of the Act requires a two-stage approach.7 The first task was to determine whether one or more of the grounds was made out, and if so to

6      Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd, above n 1.

7      Synlait Milk Ltd v New Zealand Industrial Park Ltd [2020] NZSC 157, [2020] 1 NZLR 657.

determine whether the discretion to extinguish or modify the easement or covenant issue should  be  exercised.8   He  submitted that  if  the plaintiffs  can  establish  that s 317(d) applies there is a high likelihood that the Court will exercise its discretion in the plaintiffs’ favour.

[32]   I am satisfied that QAC’s plans to develop the Northern Precinct for land uses similar to those the plaintiffs wish to conduct on their land fall with the terms of the tailored discovery order or are otherwise relevant to an assessment of QAC’s contention that modification of the land covenant will cause it substantial harm. I note also there is authority that in circumstances where tailored discovery categories have been carefully drafted between counsel, as is the case here, it is not open to one party to subsequently refuse disclosure by applying a relevance filter to documents that otherwise clearly fall within the category.9

[33]   The plaintiffs argue, and I also accept, that QAC has already discovered documents, including reports and plans for the development of the Northern Precinct, and that what is being sought include more recent documents of a similar nature which are the most up-to-date and therefore the most relevant in assessing the criteria under the Property Law Act.

[34]   Ms Heine KC relied upon Reynolds v Parkland Properties Ltd as authority that QAC’s intention to change the nature and use of its land could not be relevant to the Court’s inquiry under s 317 of the Property Law Act.10 However, the discussion of the Court of Appeal upon which she relies related to s 317(1)(a)(i). That section concerns changes that occurred between the grant of an easement or covenant and the hearing of an application by the Court.11 This application is concerned with s 317(d).

[35]   I am satisfied that the documents sought may be directly relevant to the issue of the application of s 317(d).

8 At [67].

9      Pyne Gould Corporation v Bath Street Capital Ltd [2020] NZHC 1247 at [16]; Hagaman v Hagaman [2021] NZHC 2594; and Dunajtschik v Garnham [2024] NZHC 506.

10     Reynolds v Parkland Properties Ltd, above n 3.

11     At [46], citing C Hunton Ltd v Swire [1969] NZLR 232 (SC) at 234–235.

Are there grounds for belief the documents sought exist?

[36]QAC did not argue that the documents sought do not exist.

Is the discovery proportionate?

[37]   I consider that it would not be disproportionate to order the discovery sought. The documents are clearly identified and should be relatively few in number. Whilst Ms Heine argued that the disclosure of board minutes would be disproportionate, there is no evidence before me to support that submission and I note the discovery now sought is much reduced. The plaintiffs’ request now relates just to board papers, minutes and resolutions relating to the development of the Northern Precinct whereas previously it included any internal notes, memoranda, reports, emails and external correspondence.

The Court’s discretion

[38]   QAC is correct that this application is made late in the proceeding and to some extent there may be overlap with the discovery exercise it recently undertook. However, in my view that is insufficient for the Court to refuse to make the order sought. The obligation to provide discovery is a continuing one and the documents sought are relevant to an important issue in the proceeding and must be disclosed.12 The obligation to provide continuing disclosure subsists throughout all stages of the proceeding, so it is no answer for QAC to say that discovery should not be ordered as the plaintiffs have already exchanged their briefs of evidence. This is particularly so when the plaintiffs’ request and this application were both made before the briefs were due to be exchanged.

[39]   Also, QAC did not fully comply with the plaintiffs’ earlier request for discovery. QAC refused the request for board papers, minutes and resolutions which I have found ought to have been disclosed. QAC must have known that in taking that stance there was a risk it would have to undertake further discovery if the Court ordered it.

12     High Court Rules 2016, r 8.18.

[40]   It follows from the above that the plaintiffs are entitled to an order for further discovery on the terms below.

Confidentiality

[41]   The second part of the application concerns a confidentiality condition that was agreed to by the parties. At the commencement of the hearing I was advised that it appeared that matter had been resolved with one qualification. QAC no longer opposes the order sought by the plaintiffs to modify the qualification protocol with respect to documents recently discovered in the affidavit of Ms Tregidga of 28 August 2025. However, if further discovery is ordered it maintains its opposition to modification of the confidentiality protocol to the extent that:

(a)it will assess each additional document and, where possible, protect the confidentiality of commercially sensitive information using redactions; and

(b)where QAC considers the redactions provide inadequate protection for any particular documents, the confidentiality protocol in its current form should remain in place with respect to those documents.

[42]   I do not propose to make any orders in respect to this aspect of the application. To the extent necessary counsel should be able to resolve matters between themselves. However, I shall adjourn the application so that in the event there is a further claim to maintain the confidentiality protocol in respect to particular documents which I have now ordered to be disclosed the matter can be immediately referred back to the Court for resolution.

Result

[43]The plaintiffs’ application for particular discovery is successful.

[44]   QAC shall file and serve a supplementary affidavit of documents listing all documents in its power or possession or control by 28 November 2025 as set out at

[5] above.

[45]              The plaintiffs’ application to modify the confidentiality protocol is adjourned to be brought on for hearing again on three days’ notice.

[46]              As far as costs are concerned, the plaintiffs have been successful and it would appear they are entitled to costs on the usual basis. That is a preliminary view and if the parties are unable to agree on costs I reserve leave for them to apply by memoranda.

O G Paulsen Associate Judge

Solicitors:

Brookfields, Auckland

Lane Neave, Christchurch