SANYA NAUMOVICH-POPOVICH AND ZHELYKO POPOVICH s AND HANG LIAN KOO and XIAOMING ZHANG s

[2024] NZHC 3118

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2382

[2024] NZHC 3118

UNDER

the Property Law Act 2007

IN THE MATTER OF

an application for access under section 319

BETWEEN

SANYA NAUMOVICH-POPOVICH AND ZHELYKO POPOVICH

Applicants

AND

HANG LIAN KOO and XIAOMING ZHANG

Respondents

Hearing:

24 October 2024

Counsel:

T J Rainey for Applicants

J B Murray and M Y Zhou for Respondents

Judgment:

25 October 2024

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 25 October 2024 at 10 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:

Grant & Co, Auckland

Timothy Rainey, Barrister, Auckland Vallant Hooker & Partners, Auckland

NAUMOVICH-POPOVICH v KOO [2024] NZHC 3118 [25 October 2024]

[1]                 On 17 September 2024, the applicants filed an application under s 319 of the Property Law Act 2007 (PLA) seeking access through their neighbours’ property in Ponsonby for the purpose of undertaking building work on their own property, namely:

(a)repair and repaint of the cladding of their house; and

(b)repair of their roof structure and replacing a roof.

[2]The proposed terms of access were set out in the application.

[3]                 The part of the respondents’ land over which the applicants seek access is an unused and narrow strip of land between the two dwellinghouses.

[4]                 In the context of wider disputes between the neighbours (including unresolved issues concerning their boundary fence), the parties were unable to agree on terms of access themselves.

[5]                 On 23 October 2024, the respondents filed a notice of opposition, raising four issues:

(a)whether a daily access fee should be paid;

(b)whether the applicants should be required to provide a detailed scope of work (the respondents’ particular concern is whether there is any asbestos or other health and safety issues that need to be addressed before access should be permitted);

(c)whether the applicants must first provide full disclosure of the contractor’s insurance policy, to determine whether they approve it; and

(d)whether there should be a requirement of a quiet lunch hour between 1 pm and 2 pm from Monday to Friday, during which no works are to be undertaken.

[6]                 I heard from counsel for the parties on these issues. I did not consider a daily access fee was warranted. Access is over a narrow and unused strip of land between the two dwellinghouses and there is no material detrimental impact on the neighbours that reasonably requires compensation.

[7]                 Similarly, I did not accept that it was reasonable for the neighbours to require inspection of and veto rights over the detail of a contractor’s insurance policy. The fact that insurance is held provides comfort but ultimately, if any nuisance or physical damage is caused, then the applicants and/or contractors face liability for that in tort, whether or not it is covered by an insurance policy.

[8]                 The respondents did not maintain any strong opposition on the grounds of requiring a quiet lunch hour, given that it may be to their advantage to have workers complete the work as quickly and as efficiently as possible.

[9]                 During the hearing, through discussion with counsel, two additional terms were added (with the notifications to be given by email):

(a)The applicants are to provide the respondents with a weekly proposed work schedule and reasonable advance notice if there are any material changes to it.

(b)In the event of any health and safety risk being identified during the works, including any asbestos issues, the applicants will immediately notify the respondents and advise of all mitigation measures to reduce that risk before the works proceed.

[10]              In terms of the asbestos and other potential health and safety risks raised by the respondents in opposition, my position was that there are existing legal obligations to address that, which stand outside of the scope of s 319 of the PLA. The condition in [9(b)] above provides some comfort by making a connection to those obligations, but it is not the role of the Court to bring the detail within the terms of any s 319 orders.

[11] Accordingly, at the conclusion of the hearing, I made orders in terms of paras 1(a)–(g) of the application, with the addition of the two further conditions listed at [9] above.

[12]              On the issue of costs, counsel for the applicants sought costs on a 2B basis and counsel for the respondents took the position that costs should lie where they fall. I understand that there are background issues that might explain why agreement could not be reached on these matters. It is not appropriate for the Court to attempt to hear and adjudicate those. Based on the matters in the documents filed in this proceeding, I considered it appropriate to award costs on a 2B basis for the filing of the application, but not for today’s hearing. The strong assumption in r 14.2(1)(a) of the High Court Rules is that the party who fails on an application should pay costs to the party who succeeds, so my decision on costs reflects that position.

O’Gorman J