IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-724
[2023] NZHC 3462
UNDER Section 313 Property Law Act 2007 BETWEEN
RUBY & RATA LIMITED
Plaintiff
AND
REED TRUSTEE 2018 LIMITED and
ANTHONY PRIVETT REED (as trustees of the Eagle Trust)
Defendants
Hearing: 6-7 November 2023 Appearances:
R O Parmenter for Plaintiff
J W Maassen and B D Mead for Defendants
Judgment:
30 November 2023
JUDGMENT OF O’GORMAN J
This judgment was delivered by me on 30 November 2023 at 3 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Graham & Co, Auckland Langford Law, Wellington
RUBY & RATA LIMITED v REED TRUSTEE 2018 LIMITED [2023] NZHC 3462 [30 November 2023]
[1] The parties are neighbouring landowners, in dispute about a right of way (ROW) involving two rural blocks of land in Pukekohe, Auckland:
(a)The plaintiff, Ruby & Rata Ltd (Ruby), owns the land at 87 Ruebe Road (Lot 1, DP 443412), the land benefiting from the ROW easement. The plaintiff took title to 87A Ruebe Road on 7 May 2021.
(b)The defendants are trustees of the Eagle Trust, which own the burdened land at 87A Ruebe Road (Lot 2, DP 443412). The trustees are Reed Trustee 2018 Ltd and Anthony Privett Reed. They took title to 87 Ruebe Road on 15 October 2021.
[2] The full length of the ROW easement from the road to the other end is approximately 176 metres. There is already one accessway from the shared driveway onto Ruby’s property, at location “X” on the annotated photo below (point X). The length of the easement from the road to point X is 55.5 metres. The photo shows a perspective from east at the bottom of the picture, to west at the top where the ROW driveway joins Ruebe Road. In the photo, Ruby’s land is on the left (to the south), Eagle Trust’s land is to the right (to the north). Eagle Trust’s title includes the ROW, which is shown bounded in red.
[3] This dispute is about whether Ruby is entitled to create another gated entry point to Ruby’s property further along the shared driveway at a new point marked “Z” on the above annotated photo (point Z). The length from the road to point Z is
130.1 metres. Creating a gated entry at point Z would incidentally include removing a pūriri tree at the location marked “T”. Ruby wants to form new vehicular carriageways from the shared driveway to its own land at points X and Z. The intended works are described in the amended statement of claim (the intended works):
(a)Remove the tree marked T, which, unreasonably, blocks Ruby’s intended access at point Z.
(b)Remove part of fence (posts and rails) as required but of approximately 12 metres width at each of points X and Z.
(c)Form carriageways from the existing formed and sealed driveway to the boundary:
(i)for point Z, almost in a straight line up the…
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