Shores v Howden
[2025] NZCA 140
•5 May 2025 at 10:30 am
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 proposed
evidence was to the effect that his position had changed as he had made an error in his
trial evidence. Lang J declined Ms Shores’ application.[6]
[6] Shores v Howden [2024] NZHC 844 [second further evidence judgment].
Ms Shores appeals, with leave of the High Court,[7] the decisions of Tahana and
[7] Shores v Howden [2024] NZHC 1623 [first leave judgment]; and Shores v Howden [2024] NZHC
Lang JJ declining her applications to adduce further evidence.
Factual background
We adapt from Judge Sinclair’s factual background in the first District Court
judgment.[8]
[8] First District Court judgment, above n 1, at [6]–[20].
[9] The neighbouring properties are at 28 and 30 Glengarry Avenue, Manly,
Whangaparāoa. Ms Shores owns number 30, the Howdens number 28. The titles to
the properties were created in the 1960s. They were then lots 2 and 3 (30 and
28 Glengarry Avenue, respectively) on Deposited Plan 49377 (DP 49377):
| [10] The primary access to the properties is over a right of way from |
Glengarry Avenue, which is to the northeast. That right of way (coloured green on
DP 49377) is not in issue in this proceeding.
The western ends of the properties rise steeply and adjoin an unformed
extension to Layton Road. On 22 July 1966, a right of way over lot 2 (number 30,
Ms Shores’ property) was created by a memorandum of transfer for the benefit of lot 3
(number 28, the Howdens’ property). The right of way is coloured yellow at the
southwestern corner of lot 2 on DP 49377. This is the right of way in issue.
In 1968, a house was built on 28 Glengarry Avenue positioned close to
Layton Road. The primary access to the house was and continues to be over the right
of way from Glengarry Avenue.
[13] No house was initially built on 30 Glengarry Avenue. The section was
purchased in 1971 by Ms Shores’ mother and inherited by Ms Shores in 2018.
Meanwhile, a further subdivision was undertaken in 1997. This subdivided
28 Glengarry Avenue into two main lots (which become 28 and 28A Glengarry
Avenue) and a small third lot which became part of 30 Glengarry Avenue. The existing
house was situated on 28 Glengarry Avenue.
New titles were issued after that subdivision. The title for 28 Glengarry
Avenue included a memorial recording the right of way over 30 Glengarry Avenue.
The title for 30 Glengarry Avenue did not record the right of way.
The Howdens purchased 28 Glengarry Avenue in late 2003. At the time, there
was a broken concrete driveway over the right of way up to the unformed extension
of Layton Road. The Howdens replaced it with an upgraded reinforced concrete
driveway.
In early 2019, Ms Shores and Mr Misiluti commenced site clearance work on
30 Glengarry Avenue with the intention of subdividing the property. A house was
moved onto the lower part of the property and a retaining wall was built.
Mr Misiluti met with the Howdens in late 2019 to inform them of his and
Ms Shores’ development plans. Despite the cease-and-desist letter from the Howdens’
lawyers, Mr Misiluti and Ms Shores proceeded to remove the concrete driveway and
erect fence posts across the right of way. Earthworks were also carried out, changing
ground levels.
[19] The Howdens approached Land Information New Zealand (LINZ) to correct
the title to 30 Glengarry Avenue. Ms Shores objected. LINZ amended the title to
include the right of way.
The Howdens then applied to the District Court for orders under s 313 of the
PLA requiring Ms Shores to remove the fence posts and reinstate the concrete
driveway. Ms Shores opposed the application. At that stage, her primary ground of opposition was that the right of way had never been properly created. As an alternative
ground, Ms Shores applied for an order under s 317 of the PLA extinguishing the right
of way.
The first District Court judgment
In order to provide context for Ms Shores’ applications to adduce further
evidence on her appeal to the High Court, it is necessary to explain what arguments
were advanced (and not advanced) by Ms Shores in the District Court.
Ms Shores filed lengthy affidavit evidence in support of her position that the
right of way had never been properly created. However, she abandoned that ground
prior to the District Court hearing.
Although Ms Shores’ application under s 317 for an order extinguishing the
right of way was brought as a cross-application, the Judge dealt with it first,
recognising that if it succeeded the Howdens’ application under s 313 would fall
away.[9]
[9] At [25].
Ms Shores advanced her s 317 application on several grounds. The first,
relying on s 317(1)(a)(i), was that the right of way ought to be extinguished because
of a change since its creation in the nature or extent of the use being made of the land.
Ms Shores said there had been several such changes:
(a) The construction of a house on 28 Glengarry Avenue in 1968: When the house was constructed in 1968, the then owner chose to build an
accessway from Glengarry Avenue. Ms Shores submitted that this
choice lessened the benefit of the right of way to Layton Road. She
also submitted that the placement of the house in close proximity to the
right of way to Layton Road meant it would then have become
prohibitively expensive to design and build a driveway which complied
with council gradient regulations. The Judge rejected both arguments.
The accessway from Glengarry Avenue had always been seen as the main accessway, with the right of way to Layton Road seen as a
possible accessway in the future. The engineering evidence also did
not support the contention that the placement of the house on
28 Glengarry Avenue had lessened the ability to take advantage of the
right of way.[10]
[10] At [33]–[37].
(b) The 1997 subdivision of 28 Glengarry Avenue: Ms Shores submitted there was no access planned via the right of way to Layton Road in the
1997 subdivision plans and that it was intended that the right of way be
extinguished from the new titles for 28 and 28A Glengarry Avenue.
The Judge rejected these arguments, saying there was no evidence of
any agreement between the owners of the burdened and benefited
properties to remove the right of way and also no evidence of a
surrender of the right of way.[11]
[11] At [44]–[50].
(c) Non-development of Layton Road: Ms Shores said that 60 years after the right of way was created, Layton Road remained unsealed and
undeveloped. She submitted that the potential benefit of the right of
way had therefore lessened over the years. The Judge found there had
been no change: Layton Road was and continued to be an unformed
road.[12]
[12] At [56].
(d) Cost of developing the right of way into a compliant access way: Ms Shores submitted that it would cost $150,000 to $200,000 to build
a compliant accessway across the right of way, that this was
uneconomic and that any benefit from the right of way was therefore
significantly lessened. The Judge rejected this submission, noting the
expert evidence that it would cost approximately $5,000 to reinstate the
concrete driveway over the right of way.[13]
[13] At [60].
(e) Compliant access over the right of way not possible: The Judge noted that the Howdens’ engineering expert, Mr Perman, and Ms Shores’
engineering expert, Mr Vaotogo, agreed that an accessway direct from
Layton Road to 28 Glengarry Avenue (that is, without using the right
of way) was impracticable and could not be constructed at a reasonable
cost.[14] As to the current access across the right of way, Mr Perman
[14] At [63].
considered it met the requirements of the Auckland Unitary Plan.
Mr Vaotogo disagreed. He considered that the maximum gradient
requirements for accessways were exceeded. The Howdens’ expert
planner, Mr Duthie, considered that even if Mr Vaotogo’s gradient
calculations were correct, access over the right of way could be
consented. The Judge accepted Mr Duthie’s evidence.[15]
[15] At [69].
(f) Development of 30 Glengarry Avenue: Ms Shores said her proposed development of 30 Glengarry Avenue was a change of use of the land.
The Judge held that a plan to subdivide cannot amount to a change of
use for the purposes of s 317(1)(a).[16]
[16] At [71], citing Reynolds (as trustees of the F & J Reynolds Trust) v Parklands Properties Ltd
The Judge therefore concluded that there had not been any changes in the
nature or extent of the use being made of the benefited land or the burdened land since
the creation of the right of way that would merit its extinguishment under s 317(1)(a).[17]
[17] First District Court judgment, above n 1, at [78].
Ms Shores’ second ground, relying on s 317(1)(a)(ii), was that the right of way
ought to be extinguished because of a change since its creation in the character of the
neighbourhood. The Judge dealt briefly with this ground, holding that the right of way
was created in the course of a subdivision into single-dwelling residential lots and that
the neighbourhood continued to be made up of single-dwelling homes.[18]
[18] At [74]–[76].
[27] Ms Shores’ third ground, relying on s 317(1)(b), was that the continuation of the right of way would impede the reasonable use of her land in a way that could not have been foreseen when the right of way was created in the 1960s. Ms Shores had
sought consent to develop her property by building a house on the upper part (close to
Layton Road). Evidence from Ms Shores, Mr Misiluti and Mr Vaotogo was that the
right of way impeded her planned development because it was situated where a
carparking platform and turning circle required for her proposed house were intended
to be located.
The Judge rejected this ground. She said that in the 1960s it could reasonably
have been foreseen that the owner of 30 Glengarry Avenue might build towards the
top of the property. Further, a geotechnical report provided to Auckland Council in
support of Ms Shores’ application for a building consent showed the proposed house
in a different position relative to the right of way from that shown in a plan annexed
to Mr Vaotogo’s affidavit. The Judge concluded there was no evidence that the
position of the proposed house could not be adjusted to accommodate the right of way.
The proposed development of Ms Shores’ property therefore was not prevented by the
presence of the right of way. Ms Shores’ subdivision would need to proceed on a basis
that accommodated the right of way and interfaced with it.[19]
[19] At [86]–[90].
Ms Shores’ fourth ground, relying on s 317(1)(d), was that although
extinguishing the right of way would cause some detriment to the Howdens, the
detriment would be minimal and able to be remedied by appropriate compensation.
She said that vehicular access would continue via the driveway to Glengarry Avenue
and that the Howdens would still have direct access to Layton Road from the back of
their property for pedestrian and cycling activities.[20] After considering factual and
[20] At [94].
expert valuation evidence, the Judge concluded that the Howdens would suffer
substantial injury if the right of way were extinguished. She therefore rejected this
ground also.[21]
[21] At [106].
Ms Shores also submitted that there were matters of equity and fairness which
favoured extinguishment of the right of way. First, she submitted that the Howdens
had built a concrete driveway over the right of way without the consent of Ms Shores’ mother, who owned 30 Glengarry Avenue at the time. The Judge rejected this
submission, finding that there was already a broken concrete driveway on the right of
way when the Howdens purchased 28 Glengarry Avenue and that they had acted in
accordance with their rights in replacing it.[22] Secondly, Ms Shores claimed that the
[22] At [111].
Howdens had carried out work on 30 Glengarry Avenue without consent, such as
building up the land and planting trees. The Judge said no supporting evidence was
produced establishing that the Howdens had undertaken any of those activities.[23]
[23] At [113].
Accordingly, the Judge declined Ms Shores’ application to extinguish the right
of way.[24]
[24] At [117].
The Judge then turned to the Howdens’ application to reinstate the accessway
over the right of way. The Judge held that the Howdens were entitled to have access
over the right of way restored, and that this would involve removing the obstructions
preventing access and putting in a driveway over the right of way.[25]
[25] At [119].
The Judge did not, however, make any reinstatement orders at that point. This
was because she considered it would be in the interests of both parties to:
[120] … work together on the re-establishment of the driveway in a way
that provides access from 28 Glengarry but also enables Ms Shores to go
ahead with the development of her property (albeit not necessarily as presently
planned).
In that respect, the Judge noted Mr Duthie’s observation that the optimum way
forward for both parties would be a collaborative approach to construct a common
driveway from Layton Road incorporating the right of way.[26] The Judge gave the
[26] At [121].
parties 30 days to try to reach agreement, failing which memoranda were to be filed
on the appropriate orders.[27]
Ms Shores appeals the first judgment
[27] At [123].
Ms Shores filed an appeal against the first judgment on 17 April 2023. She
contested almost every aspect of the District Court Judge’s decision declining her
s 317 application.
In addition, Ms Shores’ notice of appeal contended that the Howdens had the
ability to form vehicular access to their property directly from Layton Road (without
using the right of way) and that this would be far more practical and inexpensive than
building an accessway across the right of way that also allowed a turning circle for
Ms Shores’ proposed subdivision. This was a change from Ms Shores’ position at trial.
There, she had contended that if the right of way were extinguished the Howdens
would still have direct access to Layton Road for pedestrian and cycling activities
(but not vehicular access).[28] At trial, Ms Shores’ valuer, Mr Bates, opined that the
[28] At [94].
better position for all parties would be if Ms Shores paid for a driveway to be built
over Layton Road, in which case the Howdens could “walk or cycle” along that
driveway and “then cut directly into their own property without passing over
[Ms Shores’] land”. And, as the Judge recorded, Mr Vaotogo and Mr Perman agreed
that “an accessway direct from the back of 28 Glengarry to Layton Road is not
practicable and nor could it be constructed at a reasonable cost”.[29]
[29] At [63].
As will become apparent, this change of position underlies much of Ms Shores’
applications to adduce further evidence on her appeal to the High Court.
The second District Court judgment
Meanwhile, the parties did not reach agreement on how to reinstate the
driveway over the right of way. They filed memoranda. The Howdens asked for an
order requiring Ms Shores to reinstate a reinforced concrete driveway in accordance
with certain specifications.
[39] Ms Shores said that the original concrete driveway laid by the Howdens was non-compliant and that the Howdens were asking for a non-compliant driveway to be reinstated. The Judge referred to the evidence given at trial in connection with the first
judgment and, on that basis, rejected Ms Shores’ contentions.[30] Ms Shores also said
[30] Second District Court judgment, above n 4, at [8]–[9].
it was not possible to build the driveway proposed by the Howdens because
Auckland Council’s consent to Ms Shores’ subdivision was conditional on Ms Shores
building an accessway from Layton Road that could not be built with the Howdens’
proposed driveway. The Judge held that it was for Ms Shores to design a subdivision
that was compatible with the right of way.[31]
[31] At [15].
Finally, the Judge recorded that it was not in dispute that the reinstatement
work had to be done in compliance with sch 5 of the PLA.[32] The Judge noted two
[32] At [16]. By s 297 of the Property Law Act 2007, every grant of a vehicular right of way contains
provisions of sch 5. Clause 1(1) provides:
The grantee and the grantor have (in common with one another) the right to
go, pass, and re-pass over and along the land over which the right of way is
granted.
Clause 2(a) provides that both parties have the right:
… to establish a driveway on the land over which the right of way is granted,
and to make necessary repairs to any existing driveway on it, and to carry out
any necessary maintenance or upkeep, altering if necessary the state of that
land; …
The orders made by the Judge provided, for the avoidance of doubt, that the
reinstatement work was to be undertaken in accordance with the covenants implied in
cls 1 and 2 of sch 5.[33]
[33] Second District Court judgment, above n 4, at [17].
Ms Shores amends her notice of appeal
Ms Shores did not appeal against the second District Court judgment.
However, on 16 August 2023 she filed an amended notice of appeal against the first
judgment. In that amended notice of appeal, Ms Shores said that the Judge had erred in making the reinstatement orders — a reference to the second judgment.[34] Ms Shores
[34] We therefore proceed on the basis that Ms Shores does intend to appeal against the second
said there was no practical or economic possibility of constructing a compliant
common access driveway over the right of way that would serve both properties.
Ms Shores’ first application to adduce further evidence
On 11 September 2023, Ms Shores applied to the High Court for leave to
adduce further evidence on her appeal. The proposed evidence was in two affidavits,
only one of which is in issue on this appeal: the affidavit of Mr Martin.
Mr Martin said he was asked to provide his expert opinion on the engineering
possibility and cost of developing a “common vehicle access” to the two properties
using the right of way. Mr Martin presented three options, each of which provided for
the construction of the elevated carparking platform on 30 Glengarry Avenue set out
in Ms Shores’ subdivision plan:
(a) Option A: a common driveway over the right of way at a maximum gradient of 1 in 5. Mr Martin estimated the cost of building the
driveway and an elevated carparking platform on 30 Glengarry Avenue
at $320,000 and the cost of an elevated carparking platform on
28 Glengarry Avenue at $260,000.
(b) Option B: a common driveway over the right of way at a maximum gradient of 1 in 4. Mr Martin estimated the cost of building the
driveway and an elevated carparking platform on 30 Glengarry Avenue
at $155,000 and the cost of an elevated carparking platform on
28 Glengarry Avenue at $115,000.
(c) Option C: separate driveways to each property, with the access to 28 Glengarry Avenue being direct from Layton Road (rather than over
the right of way). Mr Martin estimated the cost of building the driveway and an elevated carparking platform on 30 Glengarry Avenue
at $155,000 and the cost of an elevated carparking platform on
28 Glengarry Avenue at $25,000.
Notably, each of Mr Martin’s options provide for vehicular access to
28 Glengarry Avenue that ends on an elevated carparking platform a significant
distance above the current ground level on that property.
Tahana J’s decision
Tahana J declined the application to adduce Mr Martin’s affidavit. The Judge
considered that Mr Martin’s evidence was not fresh. The purpose of the application
was to bolster Ms Shores’ appeal rather than to admit evidence that was not before the
District Court.[35] Tahana J was not satisfied that there were exceptional circumstances
[35] First further evidence judgment, above n 5, at [29].
justifying admission of Mr Martin’s evidence.[36] She rejected Ms Shores’ submission
[36] At [39].
that without Mr Martin’s evidence there would be no evidence before the High Court
on appeal as to the engineering feasibility or cost of the District Court’s orders.
The Judge said that Mr Perman, Mr Vaotogo and Mr Duthie had all given such
evidence.[37]
[37] At [32]–[38].
Ms Shores’ second application to adduce further evidence
On 14 March 2024, Ms Shores filed another application for leave to adduce
further evidence on her appeal. She also applied for leave under r 7.52 of
the High Court Rules 2016 to bring a second such interlocutory application.
Ms Shores’ proposed further evidence was in the form of two affidavits. One
was an affidavit that she had made in reply in her earlier application to adduce further
evidence. That affidavit is not in issue on this appeal.
[50] The other affidavit was from Mr Vaotogo. He noted that in the evidence he gave to the District Court, he had agreed with Mr Perman’s analysis that direct access to 28 Glengarry Avenue from Layton Road was not a practical option. Mr Vaotogo
said that he had made that statement “in error, without giving it due consideration”,
and that his position had now changed. He said the basis of Mr Perman’s analysis was
that direct access would have to tie in with the existing ground level at the boundary
between 28 Glengarry Avenue and Layton Road. Mr Vaotogo said that “with the
consideration that ground works can be included within the #28 property boundary to
form direct access” he now considered that direct access to 28 Glengarry Avenue from
Layton Road was feasible and practical.
Mr Vaotogo then clarified that he still maintained his view, expressed in the
evidence he gave to the District Court, that accessing 28 Glengarry Avenue from
Layton Road via the right of way was not reasonable. He referred to the designs of
Mr Martin (whose affidavit Tahana J had declined leave to adduce) and said he agreed
with them. Mr Vaotogo did not refer to Mr Martin’s cost estimates or to Mr Martin’s
affidavit itself. Mr Vaotogo concluded that in his opinion a direct accessway from
Layton Road to 28 Glengarry Avenue (without using the right of way) was the most
practical and feasible way to provide access to 28 Glengarry Avenue “while also
allowing development of #30”. This was because direct access would eliminate the
need for the right of way across 30 Glengarry Avenue.
Lang J’s decision
Lang J said it was regrettable that Ms Shores did not advance her application
to adduce Mr Vaotogo’s affidavit at the same time as her earlier application to adduce
Mr Martin’s affidavit. Lang J added:[38]
[38] Second further evidence judgment, above n 6.
[14] … Ms Shores has not explained why she failed to do so. In the
absence of any explanation there must be a concern that, faced with Tahana J’s
decision declining the application to adduce Mr Martin’s evidence, Ms Shores
has decided to endeavour to place that evidence before the Court by another
means.
Lang J held that Mr Vaotogo’s affidavit was not fresh:
[15] … [Ms Shores] has not explained why she did not ask either Mr Martin or Mr Vaotogo to undertake the analysis that Mr Martin
subsequently undertook before the hearing in the District Court. Nor has Mr Vaotogo explained why, with diligence, he could not have undertaken the
same exercise as Mr Martin prior to the trial in the District Court. His frank
acknowledgement that he did not give his previous evidence “due
consideration” suggests he could have given his current evidence at the trial
in the District Court if he had exercised diligence.
These and other factors suggested the evidence should not be admitted. But
Lang J’s greatest concern was his perception that Ms Shores was now re-crafting her
case on appeal so that it would be put to the High Court on a very different basis to
the approach taken in the District Court:
[18] … At first instance Ms Shores was prepared to accept, based no doubt
on the views then expressed by both Mr Perman and Mr Vaotogo, that direct
access between 28 Glengarry Avenue and Layton Avenue was not a practical
option. She therefore adduced evidence to support numerous arguments that
she contended were sufficient to justify the extinguishment of the existing
right of way. These included an argument that the right of way had been
extinguished when a new title was issued for 30 Glengarry Avenue in July
1997 that did not refer to the existence of the right of way. Ms Shores also
contended that the existing right of way was both uneconomic to develop and
incapable of complying with local authority requirements. The respondents
adduced evidence to counter Ms Shores’ arguments and the Judge found in
their favour on each of them. Faced with that decision she appears to have
reverted to an argument that could have been, but was not, advanced at first
instance.
In those circumstances, Lang J considered that the principle of finality in
litigation was clearly engaged. Admitting the evidence would require the Howdens to
address an issue on appeal that they had never been required to confront in the
litigation to date. It would be unfair and wrong in principle to permit that to occur.[39]
[39] At [19].
Lang J therefore declined the applications for leave to advance a second interlocutory
application and to adduce further evidence.[40]
[40] At [20].
Ms Shores’ appeals to this Court
[56] In CA433/2024, Ms Shores appeals against Tahana J’s decision declining her leave to adduce Mr Martin’s affidavit on appeal to the High Court. In CA432/2024, she appeals against Lang J’s decision declining her leave to adduce Mr Vaotogo’s
affidavit.[41] The appeals were not consolidated but were heard at the same time.
[41] Because the decisions of Tahana J and Lang J were on interlocutory applications, Ms Shores
In respect of the appeal against Tahana J’s decision, Mr Russell, for Ms Shores,
said that Mr Martin’s affidavit would fix an evidential record that had been skewed by
an erroneous consensus of expert opinion (by Mr Perman and Mr Vaotogo) on a key
issue: whether direct vehicular access from Layton Road to 28 Glengarry Avenue
without using the right of way was practical. This issue was key because, if such
access was practical, the right of way was superfluous and could be extinguished under
s 317(1)(d) of the PLA (on the ground that extinguishment would not substantially
injure the Howdens). Indeed, Mr Russell said that on the substantive appeal the most
relevant factor for the High Court to consider, in determining whether to extinguish
the right of way, would be whether 28 Glengarry Avenue could be directly accessed
from Layton Road.
Mr Russell said that Mr Perman and Mr Vaotogo’s consensus view was
erroneous because it had not been supported by thorough engineering analysis.
Mr Martin, by contrast, produced comprehensive engineered designs.
Mr Russell also said that this “evidential handicap” led the District Court to
impose an impasse by making unworkable final orders. The District Court had ordered
reinstatement of a reinforced concrete driveway on the right of way, but Mr Russell
submitted that such a driveway would not comply with Auckland Council
requirements.
Mr Russell made almost identical submissions in respect of the appeal against
Lang J’s decision. He said a clear mistake by Mr Vaotogo obstructed proper
consideration of the key issue of whether direct access from Layton Road to 28
Glengarry Avenue was practical.
Did Tahana and Lang JJ each err in declining leave to adduce further evidence?
The two appeals raise essentially the same issue. The issue is whether either
Judge erred in declining Ms Shores leave to adduce the further evidence contained in
the affidavits of Mr Martin and Mr Vaotogo. There is some crossover in those
affidavits:
(a) Mr Martin opines on the design and cost of a common driveway over the right of way that will connect with the elevated carparking platform
on 30 Glengarry Avenue proposed in Ms Shores’ subdivision plan (his
options A and B).
(b) Mr Martin also opines on the design and cost of direct vehicular access to the Howdens’ property from Layton Road (as part of his option C, in
which there is separate access to each property).
(c) Mr Vaotogo opines that direct access to the Howdens’ property from Layton Road is feasible and practical.
Given this crossover, we deal with the appeals together.
Law governing applications for leave to adduce further evidence on appeal
Rule 20.16(2) of the High Court Rules provides that a party to an appeal may
adduce further evidence only with the leave of the court. By r 20.16(3), the court may
grant leave only if there are special reasons for hearing the evidence.
The principles governing applications under r 20.16 are firmly established.
The general requirements are that the further evidence must be fresh, credible and
cogent. Evidence is not fresh if it could with reasonable diligence have been adduced
at the trial.[42] The absence of freshness is not an absolute disqualification to admission,
[42] Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at
but if the evidence is not fresh, the criteria for admission are very strict: the circumstances must be exceptional and the grounds compelling (and the evidence must
be credible and cogent).[43]
[43] Rae v International Insurance Brokers (Nelson Marlborough) Ltd, above n 42, at 193.
This Court has said that it would be wrong to allow an appellant to bolster their
case with “additional evidence which was available [at the lower Court hearing] but
was not adduced because of the particular view taken when the case was presented”.[44]
[44] Castle v Castle [1980] 1 NZLR 14 (CA) at 17, cited with approval in Nation v Nation [2005]
Litigants are under an obligation to put their best case at trial and must live with the
litigation strategy they choose to adopt.[45] On appeal, litigants are not entitled to recast
[45] Rae v International Insurance Brokers (Nelson Marlborough) Ltd, above n 42, at 192.
their case by adducing new evidence.[46]
[46] White v Spence [2014] NZCA 298 at [19].
Finally, the prospect of the further evidence triggering substantial re-litigation
before the appellate court of the substantive case (for example, through evidence in
rebuttal and cross-examination) will count against admitting the further evidence.[47]
[47] Sturgess v Dunphy [2014] NZCA 45 at [27].
Mr Russell relied on the principles set out by this Court in Foundation for
Anti-Aging Research v Charities Registration Board.[48] That decision concerned an
[48] Foundation for Anti-Aging Research v Charities Registration Board [2015] NZCA 449
appeal to the High Court under s 59 of the Charities Act 2005. In the High Court, the
Foundation had applied for leave to adduce further evidence, to call evidence orally
and to cross-examine a witness. The High Court Judge granted leave to the Foundation
to adduce additional evidence in limited respects but otherwise declined to make the
orders sought.[49] On appeal to this Court, the Foundation challenged the refusal to
[49] Foundation for Anti-Aging Research v Charities Registration Board [2014] NZHC 1153.
allow an oral hearing but did not challenge the refusal to allow further evidence
beyond the limited extent granted.[50] The sole question for this Court was, therefore,
[50] Foundation for Anti-Aging Research (CA), above n 48, at [3]–[5].
whether ss 59 and 61 of the Charities Act and/or the High Court Rules permitted an
oral hearing of an appeal to the High Court.[51] In answering that question, the Court referred to the principles governing applications to adduce further evidence.[52] The
[51] At [7].
[52] At [49]–[52].
Court was not attempting to restate those principles, and we see nothing in what the
Court said as inconsistent with the settled principles to which we have referred in the
preceding paragraphs.
The evidence is not fresh
Mr Russell quite properly acknowledged that the evidence in Mr Martin’s and
Mr Vaotogo’s affidavits could with reasonable diligence have been adduced at the trial.
It is not fresh evidence. Ms Shores therefore must show exceptional circumstances
and compelling grounds for its admission. In addition, the evidence must be credible
and cogent.
Should the new evidence about direct vehicular access be admitted?
Mr Russell primarily focussed his submissions on the new evidence about
direct vehicular access from Layton Road to the Howdens’ property. He submitted
that the opinions of Mr Perman and Mr Vaotogo in the District Court about direct
vehicular access were “inadequate” and “incorrect” because they were not supported
by thorough engineering analysis. These shortcomings obstructed proper
consideration of a key issue: whether such direct access is practical. Mr Russell
submitted that if direct vehicular access is practical, the right of way is superfluous
and can be extinguished. Mr Martin’s affidavit corrects the evidential shortcoming by
providing, for the first time, a fully engineered design showing that direct access is
practical. This is Mr Martin’s option C, in which the driveway ends on an elevated
carparking platform to be built on the Howdens’ property.
Mr Russell submitted that Mr Vaotogo’s affidavit also corrects the position.
Mr Vaotogo says he erred in his District Court evidence and is now of the opinion that
direct vehicular access is practical.
[71] Mr Russell submitted that if the two new affidavits were not admitted, the High Court would have an inaccurate and incomplete picture of the experts’ views about whether it is practical to construct direct access to the Howdens’ property.
He said this provided compelling grounds for admitting the new evidence.
We do not accept these submissions. In the District Court proceeding there
plainly was a dispute about whether direct access from Layton Road to the Howdens’
property was practical. This is how the evidence unfolded:
(a) Ms Shores and Mr Misiluti each asserted in their first affidavits that direct access could be provided with relatively little work. Mr Misiluti,
who is a builder, said he had offered to the Howdens to create direct
driving access on to their property and showed them how and where
this would be possible.
(b) The Howdens engaged Mr Perman to investigate and advise on the practicality of direct access from Layton Road. Mr Perman said in his
affidavit that he assumed direct access would have to tie into the
existing ground level and carport to maintain the functionality of the
carport that was connected to the house on 28 Glengarry Avenue.
Mr Perman produced a high-level conceptual design for such direct
access. He opined that direct access was feasible but impractical. It
would require portions of Layton Road to be lowered and portions of
the existing retaining wall on the Howdens’ property to be
reconstructed. Doing so would be very costly and the end result was
likely to be non-compliant.
(c) Ms Shores engaged Mr Vaotogo to reply to Mr Perman’s evidence. He referred to Mr Perman’s opinion that direct access was feasible but not
practical. He said he agreed with Mr Perman’s conceptual extent of
works and did not consider direct access a practical option.
(d) Mr Misiluti also made an affidavit in reply. He said he had seen Mr Vaotogo’s expert report in draft. Mr Misiluti said:
A built up platform for compliant access is an option for the
Howdens [sic] access onto their own property. The costs would be significantly lower than the option proposed by their
engineer [Mr Perman] and would not need to cross over our
property.
Ms Shores has been represented by counsel throughout this proceeding. At
trial, she did not pursue the argument that direct vehicular access from Layton Road
was practical. That argument would have been relevant to the claim that extinguishing
the right of way would not cause substantial injury to the Howdens. In respect of that
claim, the Judge recorded Ms Shores as submitting merely that the Howdens would
have direct access “for pedestrian and cycling activities”.[53]
[53] First District Court judgment, above n 1, at [94].
Further, Ms Shores would have been aware from Mr Misiluti’s reply affidavit
that he considered there was another less expensive option for direct access, involving
a built-up platform. Ms Shores could have asked Mr Vaotogo to investigate and report
on that option in his evidence. She did not.
These were litigation strategies that Ms Shores chose to adopt. She appears to
have focussed at trial on the many other grounds she advanced for extinguishing the
right of way. She now wishes to recast her case by arguing on appeal, in reliance on
new evidence, that direct vehicular access is practical. This factor weighs very heavily
against granting leave.
Also weighing heavily against granting leave is the content of the proposed
new evidence about direct vehicular access in the two affidavits:
(a) Mr Martin’s option C shows the direct access ending on an elevated carparking platform above the current ground level on the Howdens’
property. This is similar to the proposal in Mr Misiluti’s reply affidavit
for direct access to a built-up platform — the very option that
Ms Shores chose not to ask Mr Vaotogo to investigate and report on for
the trial.
(b) Mr Vaotogo says his District Court evidence was “in error” because he overlooked the consideration of ground works being completed on the Howdens’ property to form direct access. Mr Vaotogo then opines, on
the assumption that ground works can be included, that direct access is
practical. Mr Vaotogo does not describe the necessary ground works
or provide any plans, but he can only be referring to ground works that
build up (rather than down) on the Howdens’ property. So, again, this
is evidence on the option that Ms Shores chose not to explore for the
trial.
It is no answer to these points to submit, as Mr Russell did, that without the
new evidence the High Court when hearing the appeal will have an inaccurate and
incomplete picture of the experts’ views, and that the new evidence is needed to
“correct” shortcomings in the evidence in the District Court. New evidence can almost
always be characterised as “correcting” a shortcoming below. It is not an exceptional
circumstance or a compelling reason for admitting the evidence. The submission does
not engage with the principles that govern the admission of new evidence on appeal.
Mr Russell’s submission rested on a contention that Mr Perman’s evidence in
the District Court on the question of direct access was “inadequate” or “incorrect”. At
least on this appeal, Mr Russell did not provide any evidential basis for that contention.
Mr Perman’s engineering analysis is just as detailed as Mr Martin’s. Mr Martin did
not comment on, let alone criticise, Mr Perman’s analysis. Nor did Mr Vaotogo in his
new affidavit. On the face of the affidavits, the different opinions expressed by the
experts reflect different assumptions rather than disagreements about engineering
analysis or calculations. Mr Perham and Mr Vaotogo (in the District Court) assumed
that direct access would have to tie into the existing ground level and carport on the
Howdens’ property so as to maintain existing functionality. Mr Martin and
Mr Vaotogo (in his new affidavit) assume that direct access can be constructed to an
elevated platform on the Howdens’ property.
This leads to other considerations that weigh against permitting this evidence
to be adduced on appeal. While the evidence is credible, it has limited cogency.
Contrary to Mr Russell’s submission, even if Mr Martin’s option C were accepted as
a practical means of direct access, it is not obvious this would mean that the right of
way could be extinguished on the ground that extinguishment would not cause substantial injury. This is because the right of way ties in with the existing ground
level of the Howdens’ property and therefore (to adopt Mr Vaotogo’s words) maintains
the property’s existing functionality, whereas option C does not. Determining whether
in these circumstances extinguishing the right of way would cause substantial injury
is an issue that Ms Shores did not raise at trial. If she were permitted to raise it on
appeal by adducing this new evidence, there would very likely be further engineering
and valuation evidence (including cross-examination). Allowing the new evidence to
be adduced would likely trigger substantial re-litigation on the appeal.
For all these reasons, we consider that leave should not be granted to Ms Shores
to adduce on her appeal the new evidence about direct vehicular access.
Should the new evidence about developing common vehicle access be admitted?
Mr Martin’s affidavit also addresses the engineering possibility and cost of
developing a common vehicle access to the two properties using the right of way. He
proposes two options for doing so, A and B. Each of those options assumes that the
common vehicle access would integrate with the elevated carparking platform on
30 Glengarry Avenue that Ms Shores proposes to build as part of her subdivision.
Mr Martin provides a cost estimate for each option.
Mr Russell advanced two arguments for this aspect of Mr Martin’s evidence to
be adduced on appeal. The first was that Mr Martin was the first person to produce
fully engineered designs for a common vehicle access. Mr Russell submitted that the
lack of such designs led the District Court to impose an impasse by making
“unworkable” final orders. The orders were unworkable, Mr Russell said, because a
reinstated concrete driveway on the right of way could not comply with Auckland
Council requirements. This, Mr Russell submitted, was a compelling ground for
adducing Mr Martin’s evidence about common vehicle access.
We do not accept that submission. Whether a reinstated concrete driveway on
the right of way would comply with Auckland Council requirements was an issue that
was fully ventilated in the District Court. There was evidence from Mr Perman and
Mr Duthie (for the Howdens) and from Mr Vaotogo (for Ms Shores) on that issue.
In submitting that a reinstated concrete driveway on the right of way would be non-compliant, Mr Russell referred us only to Mr Vaotogo’s evidence on that issue in
the District Court. Mr Russell did not refer to any evidence in Mr Martin’s affidavit.
Indeed, Mr Martin’s affidavit does not address the issue. At the hearing, Mr Russell
accepted that he did not need Mr Martin’s affidavit in order to make his “unworkable”
submission on the appeal to the High Court.
Mr Russell’s other argument was that Mr Martin was the first person to
estimate the cost of developing common vehicle access and that his evidence on that
cost showed that the District Court’s orders were not feasible or economic when
compared with the cost of developing direct access to the Howdens’ property. This
argument therefore depends on leave being granted to adduce Mr Martin’s evidence
about direct vehicular access. Such leave having been refused, this argument falls
away.
In any event, there are two other considerations that together weigh against
granting leave to adduce this evidence. First, Mr Martin’s options A and B assume
that the common vehicle access has to connect with the elevated carparking platform
in Ms Shores’ proposed subdivision. That is contrary to the findings of
the District Court.[54] We acknowledge that Ms Shores might challenge those findings
on her appeal. But there is nonetheless considerable uncertainty over the validity of
the assumption, which limits the cogency of the evidence.
[54] At [90]; and second District Court judgment, above n 4, at [15].
Secondly, Ms Shores engaged Mr Vaotogo to prepare concept designs for
access, and to estimate the costs of one of those designs. Mr Duthie, the Howdens’
expert planner, then expressed the view that, from a planning perspective, a common
vehicle access was feasible. Ms Shores engaged Mr Vaotogo to make an affidavit in
reply. Mr Vaotogo presented a preliminary design for a common vehicle access. His
design maintained the current ground levels for the right of way. Mr Vaotogo opined
that such access was not feasible. Ms Shores could have, but did not, ask Mr Vaotogo
to design a common vehicle access that integrated with her proposed elevated
carparking platform. Ms Shores did not explain why she did not ask Mr Vaotogo to do that. In seeking to adduce evidence of such designs from Mr Martin, Ms Shores is
attempting to bolster and recast her case on appeal.
Conclusion
For these reasons, we consider Tahana and Lang JJ were each right to decline
leave to Ms Shores to adduce the new evidence of Mr Martin and Mr Vaotogo.
This conclusion means it is unnecessary to address whether Lang J was also
right to decline leave to Ms Shores to bring a second interlocutory application to
adduce further evidence.
Costs
The Howdens are entitled to costs on the appeals. The parties agreed that the
appeals should be categorised as standard appeals for costs purposes. They disagreed
about other matters:
(a) Mr Russell submitted that the appeals should be regarded as one for costs purposes, whereas Mr Hannan, for the Howdens, submitted they
should be regarded as two appeals. We agree with Mr Hannan. Two
cases on appeal (one primary, one supplementary) were prepared.
Separate synopses of submissions were prepared and filed.
(b) Mr Hannan submitted that the appeals were so unmeritorious, especially when set out in the history of the proceeding, that an uplift
in costs is appropriate. We disagree. The threshold for an uplift is
high.[55] The history of the proceeding (by which Mr Hannan means the
history in the District and High Courts) is a matter for costs in those
courts.
[55] See for example Lepionka & Co Investments Ltd v Gibson Sheat [2023] NZHC 2745 at [29], where
Costs should be assessed on a band A basis.
| Result | |
| [91] | The appeals are dismissed. |
| [92] | On each appeal, the appellant is to pay the respondents costs for a standard |
appeal on a band A basis and usual disbursements.
Solicitors:
Russell Legal, Auckland for Appellant
Wynyard Wood, Auckland for First and Second Respondents
| Judgment: | 5 May 2025 at 10:30 am |
JUDGMENT OF THE COURT
| A | The appeals are dismissed. |
| B | On each appeal, the appellant is to pay the respondents costs for a standard |
| appeal on a band A basis and usual disbursements. |
SHORES v HOWDEN AND WITHERS & CO TRUSTEE COMPANY LIMITED [2025] NZCA 140 [5 May 2025]
1631 [second leave judgment].
[2021] NZCA 394, (2021) 22 NZCPR 516 at [39] and [48].
the implied covenants in sch 5.
District Court judgment. We note that the amended notice of appeal was filed after expiry of the
period for appealing against the second judgment. To be clear, we make no determination on the
regularity of that part of her appeal, that issue not having been raised before us.
required leave under s 56 of the Senior Courts Act 2016 to bring her appeals. Tahana J granted
leave in the first leave judgment, above n 7, Lang J in the second leave judgment, above n 7.
192, cited with approval in Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence)
(No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [6].
3 NZLR 46 (CA) at [165]. These decisions dealt with the wider discretion, now found in s 39B(3)
of the Property (Relationships) Act 1976, to admit further evidence if the court “thinks that the
interests of justice so require”.
[Foundation for Anti-Aging Research (CA)].
Cooke J dealt with the High Court equivalent of r 53E(2)(b)(ii) of the Court of Appeal (Civil)
Rules 2005. The same criteria and principles govern an award of increased costs in the High Court
and the Court of Appeal.