Ruby & Rata Limited v Reed Trustee 2018 Limited - [2022] NZHC 2928

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-724

[2022] NZHC 2928

UNDER section 313 Property Law Act 2007

BETWEEN

RUBY & RATA LIMITED

Plaintiff

AND

REED TRUSTEE 2018 LIMITED and ANTHONY PRIVETT REED

Defendants

Hearing: On the papers

Appearances:

RO Parmenter for the Plaintiff JW Maassen for the Defendants

Judgment:

8 November 2022

JUDGMENT OF FITZGERALD J

[As to costs]

This judgment was delivered by me on 8 November 2022 at 4.00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Graham & Co, Auckland (G Bilkey)
Langford Law, Wellington (J Langford)

To:R Parmenter, Auckland J Maassen, Wellington

RUBY & RATA LTD v REED [2022] NZHC 2928 [8 November 2022]

Introduction and background

[1] The plaintiff (Ruby) and defendants (to which I will refer collectively as Mr Reed) own adjoining rural properties. There is a right of way easement which passes over Mr Reed’s land to give Ruby access to its property. Ruby wants to carry out works on the right of way, including forming an additional access point from the right of way to its property. Mr Reed objects to the proposed works, saying that they go beyond what is reasonably necessary for Ruby to enjoy its rights under the right of way.

[2] Discussions and correspondence between the parties did not resolve matters. In the event, Mr Reed issued trespass notices against Ruby’s two directors. The trespass notices were framed in broad terms, warning each of Ruby’s directors to “stay off the place known as 87 Ruby Road”.

[3] In response, Ruby sought an interim injunction against Mr Reed, preventing Mr Reed from:

(a)enforcing the trespass notices; and

(b)interfering with any of the works on the right of way proposed by Ruby.

[4] The hearing of the injunction application came before me. I found that there was plainly a serious question to be tried, but on the balance of convenience, declined the application.1

[5] I concluded that both parties had taken initial positions that were probably not sustainable as a matter of law, but that there was a serious question to be tried that Ruby could establish more than one access point from the right of way to its property. I held, however, that the effect of granting the relief sought at [3(b)] above would have been to effectively determine the substantive dispute as to the reasonableness of the proposed works. That was not appropriate on an interim injunction application. In addition, following the injunction application being filed and served, Mr Reed’s

1 Ruby & Rata Ltd v Reed [2022] NZHC 2025.

counsel had confirmed that the trespass notices were not intended to prevent everyday use of the right of way. In response, counsel for Ruby noted in his memorandum filed on the first call of the matter that given the confirmation provided by counsel for Mr Reed, he did “not press for an injunction”. It remains unclear to me from the…

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.

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Details

Case: [2022] NZHC 2928
Decision Date: 8 November 2022

CaseChat Overview and Summary

Ruby & Rata Limited, the plaintiff, sought an injunction against Reed Trustee 2018 Limited and Anthony Privett Reed, the defendants, to prevent the enforcement of trespass notices that barred Ruby's directors from entering the defendants' property. Ruby aimed to carry out works on the right of way easement that traverses the defendants' land, providing Ruby access to its property. The defendants objected, arguing that the proposed works exceeded what was reasonably necessary for Ruby to enjoy its rights under the right of way. Ruby's application for an interim injunction was declined by the court, which found that while there was a serious question to be tried regarding the scope of Ruby's rights under the right of way, granting the injunction would effectively determine the substantive dispute, which was not appropriate on an interim application.

The court addressed the legal issues concerning the scope of Ruby's rights under the right of way and the proportionality of the proposed works. It considered whether Ruby's proposed works were reasonably necessary and whether the trespass notices were validly issued. The court concluded that there was a serious question to be tried on whether Ruby could establish more than one access point from the right of way to its property, but that granting the injunction would have prematurely determined the substantive dispute. The court also noted that the trespass notices were later clarified to not prevent everyday use of the right of way.

The court decided that, despite Ruby's unsuccessful application for an injunction, it was reasonable for Ruby to have brought the application given the broad terms of the original trespass notices. The injunction application led to the relief Ruby sought regarding the trespass notices, and therefore, the appropriate outcome for costs was for costs to lie where they fell. The court found that the defendants' claim for costs was inflated and not reflective of the proper application of the costs rules. The court ordered that costs lie where they fell, indicating that if costs were awarded to the defendants, they would be significantly less than the amount claimed.

The court's judgment highlighted the importance of carefully considering the scope of rights under easements and the necessity of proposed works, while also acknowledging the procedural steps taken by the plaintiff in seeking interim relief. The decision underscored the need for proportionality in the enforcement of rights and the potential consequences of pursuing claims that do not ultimately succeed.

Orders