Ruby & Rata Limited v Reed Trustee 2018 Limited - [2022] NZHC 2025

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-724

[2022] NZHC 2025

UNDER section 313 Property Law Act 2007

BETWEEN

RUBY & RATA LIMITED

Applicant

AND

REED TRUSTEE 2018 LIMITED and ANTHONY PRIVETT REED

Respondents

Hearing: 2 August 2022

Appearances:

RO Parmenter for the Plaintiff JW Maassen for the Defendant

Judgment:

16 August 2022

JUDGMENT OF FITZGERALD J

[Application for interim injunction]

This judgment was delivered by me on 16 August 2022 at 11.30am, 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 2025 [16 August 2022]

Introduction

[1] The applicant, who I will refer to as “Ruby”, applies for an interim injunction in relation to a right of way easement which passes over the respondents’ land.1 Mr Reed is the grantor and Ruby is the grantee of the right of way.2

[2] In summary, Ruby wants to carry out works on the right of way and says they are consistent with its rights as grantee. Mr Reed, on the other hand, says the proposed works go beyond what is reasonably necessary for Ruby to enjoy its rights under the right of way. He issued trespass notices against Ruby’s two directors as a result.

[3]Ruby now seeks interim relief 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.

The right of way as it currently exists

[4] Ruby and Mr Reed’s properties are located adjacent to each other. Both are rural blocks of land. It is convenient to set out an aerial photograph of the properties, the right of way and the access points which Ruby wants to develop. That is shown below:

1 I will refer to the respondents collectively as Mr Reed.
2 Although the right of way was created prior to either party owning the properties in question.

[5] Ruby’s land is on the left-hand side of the above photograph, Mr Reed’s is on the right. The right of way is shown by the red boundary. As can be seen, it runs alongside the boundary of Ruby’s land. Through the middle of the right of way is a formed and sealed driveway which can also be seen in the above photograph (the light area within the red boundary).

[6] As matters currently stand, there is only one access point to Ruby’s land from the right of way, at the point marked “X” in the photograph. The gate which forms that access point is across a grass verge from the sealed driveway.

The works Ruby wants to carry out on the right of way

[7] Ruby wants to gravel the land (currently in grass) leading from the main sealed driveway to the gate at access point X (so vehicles using access point…

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 2025
Decision Date: 16 August 2022

CaseChat Overview and Summary

Ruby & Rata Limited has applied for an interim injunction to restrain Reed Trustee 2018 Limited and Anthony Privett Reed from enforcing trespass notices and interfering with proposed works on a right of way easement over Reed's property. Ruby wants to create a second access point from the right of way to its property and gravel the land leading from the main driveway to the access points. Reed opposes the application on the basis that the proposed works are not reasonably necessary for Ruby's enjoyment of the right of way and are instead connected with a resource consent for subdividing Ruby's property into four lots. The Court found there is a serious question to be tried as to whether Ruby's proposed works are consistent with its rights under the right of way. However, the Court declined to grant the interim injunction on the basis that the balance of convenience and overall justice favoured allowing the matter to proceed to a full hearing. The Court noted that the reasonableness of the proposed works is an intensely factual question that should be determined with proper evidence and submissions at a full hearing. While the Court had some sympathy for Ruby's position, it was not appropriate to determine the substantive dispute through the interim injunction application given the limited evidence before the Court. The Court also encouraged the parties to agree on an interim position pending the final hearing to avoid unnecessary litigation.

The Court declined Ruby's application for an interim injunction but declined to award costs to either party at this stage. The Court noted that it was not unreasonable for Ruby to bring the application given the overly broad original trespass notices. However, the parties were encouraged to agree on costs between themselves, with an opportunity to apply to the Court if agreement could not be reached. The Court also noted that the substantive hearing may be suitable for determination under Part 18 of the High Court Rules, with discovery unlikely to be required.

Orders