Shores v Howden - [2025] NZCA 140

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA432/2024 CA433/2024

[2025] NZCA 140

BETWEEN MARY LOUISE SHORES
Appellant
AND CHARLES ALAN HOWDEN AND
WITHERS & CO TRUSTEE COMPANY
LIMITED AS TRUSTEES OF THE
CHARLES ALAN HOWDEN FAMILY
TRUST
First Respondents
CAROLYN ANN HOWDEN AND
WITHERS & CO TRUSTEE COMPANY
LIMITED AS TRUSTEES OF THE
CAROLYN ANN HOWDEN FAMILY
TRUST
Second Respondents

Hearing:	11 November 2024 (further information received 12 November
2024)
Court:	Courtney, Campbell and Cull JJ
Counsel:	S E Russell and R K Potter for Appellant
J G H Hannan and N G Lawrence for First and Second
Respondents

REASONS OF THE COURT

(Given by Campbell J)

The appellant, Ms Shores, and the respondents, the Howdens, are neighbours.

There is a right of way easement over Ms Shores’ property for the benefit of the

Howdens’ property. The right of way was created in the 1960s.

Ms Shores wished to subdivide her property. In October 2019, her partner,

Mr Misiluti, met with the Howdens. He told them he believed the right of way did not

exist and he and Ms Shores intended to remove a concrete driveway over the right of

way that the Howdens had installed in 2004. The Howdens’ lawyer wrote a

cease-and-desist letter to Ms Shores. Undeterred, in November 2019 Ms Shores broke

up the concrete driveway over the right of way and erected fence posts that prevented

vehicle access.

The Howdens applied to the District Court for orders under s 313 of the

Property Law Act 2007 (PLA) requiring Ms Shores to remove the fence posts and

reinstate the concrete driveway. Ms Shores made a cross-application to extinguish the

right of way under s 317 of the PLA.

In a judgment dated 17 March 2023, Judge Sinclair declined to extinguish the

right of way.[1] She said the Howdens were entitled to have access over the right of way

[1] Howden v Shores [2023] NZDC 4736 [first District Court judgment] at [117].

restored.[2] She gave the parties some time to see whether they could agree on how the

[2] At [119].

restoration work should best proceed.[3] No such agreement was reached, and so the

[3] At [122].

Judge issued a second judgment on 20 June 2023 with final orders requiring Ms Shores

to remove the fence posts and reinstate the concrete driveway.[4]

[4] Howden v Shores [2023] NZDC 12363 [second District Court judgment].

[5] Ms Shores appealed the first judgment to the High Court. She then applied to adduce further evidence on the appeal from a new expert, Mr Martin, a civil engineer. Tahana J declined leave to adduce Mr Martin’s evidence on the basis it was not fresh

and there were no exceptional circumstances to justify it being adduced.[5]

[5] Shores v Howden [2023] NZHC 3811 [first further evidence judgment] at [29] and [39].

Ms Shores then made a second application to adduce further evidence on the

appeal, this time from her engineering expert at the trial, Mr Vaotogo. His…

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.

Continue reading Shores v Howden

Details

AGLC: Shores v Howden [2025] NZCA 140
Case: [2025] NZCA 140
Decision Date: 5 May 2025 at 10:30 am

CaseChat Overview and Summary

In Shores v Howden, the Court of Appeal of New Zealand considered appeals by Ms Shores against decisions of the High Court to decline her applications to adduce further evidence on her appeal against the District Court's refusal to extinguish a right of way over her property. The right of way benefits the Howdens' property. The Court of Appeal held that the High Court Judges were correct to decline Ms Shores leave to adduce the new evidence. The new evidence was not fresh as it could have been adduced at the trial. Ms Shores did not show exceptional circumstances and compelling grounds for admitting the evidence. The evidence had limited cogency and admitting it would likely trigger substantial re-litigation before the appellate court. For these reasons, the Court of Appeal dismissed Ms Shores' appeals and ordered her to pay the Howdens' costs of the appeals. The appeals concerned interlocutory applications to adduce further evidence on appeal, and were heard together but not consolidated.

Orders