Shores v Howden

[2024] NZHC 1631

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-689

[2024] NZHC 1631

UNDER

The Property Law Act 2007

IN THE MATTER OF

a Right-of-Way over 30 Glengarry Avenue, Whangaparaoa

BETWEEN

MARY LOUISE SHORES

Applicant

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:

On the papers

Appearances:

J K Potter for Appellant

J Hannan for Respondents

Judgment:

20 June 2024

JUDGMENT OF LANG J

[on application for leave to appeal to Court of Appeal]

This judgment was delivered by Justice Lang On 20 June 2024 at 11.00 am

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel: Russell Legal, Auckland

Wynyard Wood/J Hannan, Auckland

SHORES v HOWDEN [2024] NZHC 1631 [20 June 2024]

[1]                 On 18 April 2024, I declined an application by the applicant, Ms Shores, for an order granting her leave to adduce new evidence at the hearing of her appeal.1 The appeal relates to a decision delivered by Judge A A Sinclair in the District Court at Auckland on 17 March 2023.2 Ms Shores now seeks leave to appeal to the Court of Appeal against my decision.

[2]                 My decision followed an earlier decision by Tahana J, in which she dismissed another application by Ms Shores to adduce new evidence at the hearing of the appeal.3 My decision declined an application by Ms Shores to adduce an affidavit by Mr Jade Vaotogo, a civil engineer who gave evidence on her behalf  in  the  District  Court. Mr Vaotogo says he has now reviewed the evidence he gave in the District Court and says his earlier evidence was mistaken. In reaching this conclusion, he had regard to an affidavit prepared for Ms Shores by another civil engineer, Mr Michael Martin. Tahana J declined an application by Ms Shores to adduce an affidavit by Mr Martin at the hearing of the appeal.

[3]                 I declined the application to adduce the affidavit by Mr Vaotogo because I did not consider the evidence was fresh.4 I was also concerned that Ms Shores was endeavouring to “reshape” her case on appeal so that it proceeded in a fundamentally different manner to the way in which she presented her case in the District Court.5

[4]                 In a decision delivered on 19 June 2024, Tahana J has granted an application by Ms Shores for leave to appeal to the Court of Appeal against her decision.6 I therefore need to decide the present application in the knowledge that the Court of Appeal will be considering the issue of whether Ms Shores can present new evidence at the hearing of the appeal in any event.

[5]                 Tahana J has summarised the legal principles that apply in the present situation and I do not propose to repeat them here.7 It suffices to say that I am satisfied the

1      Shores v Howden [2024] NZHC 844.

2      Howden v Shores [2023] NZDC 4736.

3      Shores v Howden [2023] NZHC 3811.

4      Shores v Howden, above n 1, at [15].

5 At [18].

6      Shores v Howden [2024] NZHC 1623.

7      At [9]-[11].

interests of justice require the Court of Appeal to hear appeals against both decisions given the close connection between the evidence given by Mr Martin and the way in which Mr Vaotogo’s says it has affected his view of matters.

[6]                 I therefore grant leave to appeal against my decision. I direct that the notice of appeal is to be filed with the Court of Appeal within seven days.

[7]                 At this stage, the fixture on 24 July 2024 remains in place. Any application for an adjournment of that fixture will need to be made to Robinson J as the Civil Appeals List Judge.

Lang J