Shores v Howden - [2024] NZHC 1623

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2023-404-000689

[2024] NZHC 1623

UNDER The Property Law Act 2007

IN THE MATTER OF

A Right-of-Way over 30 Glengarry Avenue Whangaparāoa

BETWEEN

MARY LOUISE SHORES

Appellant

AND

CHARLES ALAN HOWDEN and WITHERS & CO TRUSTEE COMPANY

LIMITED as trustee of the Charles Alan Howden Family Trust
First Respondents

CAROLYN ANN HOWDEN and WITHERS & CO TRUSTEE COMPANY

LIMITED as trustee of the Carolyn Ann Howden Family Trust

Second Respondents

On the papers

Appearances:

S Russell for the Appellant

J Hannan & P Brash for the Respondents

Judgment:

19 June 2024

JUDGMENT OF TAHANA J

(Leave to appeal)

This judgment was delivered by me on 19 June 2024 at 2.30pm Pursuant to Rule 11.5 of the High Court Rules

Solicitors/Counsel: Wynyard Wood, Auckland
Bankside Chambers., Auckland Russell Legal, Auckland

…………………………
Registrar/Deputy Registrar

SHORES v HOWDEN (Leave to appeal) [2024] NZHC 1623 [19 June 2024]

Introduction

[1] The appellant, Ms Shores, appealed the decision of Judge A A Sinclair in the District Court at Auckland on 17 March 2023.1 The appeal is set down for hearing on 24 July 2024.

[2] On 20 December 2023, I declined Ms Shores’ application to adduce as new evidence on appeal, the affidavit of Mr Michael Martin, a civil engineer. 2 Ms Shores now applies under s 56(3) of the Senior Courts Act 2016 for leave to appeal my decision. The respondents (the Howdens) oppose the application.

Background

[3] The Howdens applied to the District Court for an order under s 313 of the Property Law Act 2007 (PLA) requiring Ms Shores to reinstate a driveway so they could access a right of way over Ms Shores’ property. Ms Shores cross-applied under s 317 of the PLA to extinguish the right of way.

[4] The applications were heard together. The Judge granted the Howdens’ application and dismissed Ms Shores’ application. At the hearing, Ms Shores relied on the affidavit evidence of Mr Vaotogo, a civil and structural engineer.

[5] On appeal, Ms Shores applied to adduce the new evidence of Mr Martin. I declined that application because I did not consider the evidence was fresh3 and was not satisfied there were exceptional circumstances to justify it being adduced.4 Mr Martin’s evidence contradicted the evidence of Mr Vaotogo who had agreed that it was not feasible to construct a direct accessway to the Howdens’ property.

[6] After my decision, Ms Shores applied to adduce a new affidavit of Mr Vaotogo dated 27 February 2024. Mr Vaotogo deposed that he had made a statement in error, without giving it due consideration and that his position had now changed.

1 Howden v Shores [2023] NZDC 4736.
2 Shores v Howden [2023] NZHC 3811.
3 At [29].
4 At [39].

Mr Vaotogo annexed the designs prepared by Mr Martin and deposed that he had reviewed them with his software and that he agreed with them.

[7] On 18 April 2024,…

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 [2024] NZHC 1623
Case: [2024] NZHC 1623
Decision Date: 19 June 2024

CaseChat Overview and Summary

In Shores v Howden, the appellant, Ms Mary Louise Shores, sought leave to appeal the High Court's decision of 20 December 2023, which declined her application to adduce new evidence on appeal. This evidence was intended to counter the decision of the District Court, which had ordered Ms Shores to reinstate a driveway to allow the respondents, Charles Alan Howden and Carolyn Ann Howden, access to a right-of-way over her property. Ms Shores' cross-application to extinguish the right-of-way was dismissed by the District Court. The core legal issues revolved around the admissibility of new evidence on appeal, the potential error of fact or law in the original decision, and whether the appeal's delay and the potential for further delay served the interests of justice.

The court examined whether there was an arguable error of fact or law in the original decision, given the new affidavit from Mr Vaotogo, a civil and structural engineer, who had changed his position from the evidence given in the District Court. The court found that there was an arguable error of fact, as Mr Vaotogo's new affidavit suggested that his previous statement was erroneous and without due consideration. This new evidence, if admitted, could potentially alter the outcome of the appeal. The court also considered whether the error was of general or public importance, and whether the appeal's delay and potential for further delay were justified by the issues at stake. The court found that the appeal raised significant issues about the finality of litigation and the rights of litigants when an expert admits to an error in their evidence. The court concluded that granting leave to appeal was in the interests of justice.

In granting leave to appeal, the court highlighted that while there would be further delay and potential prejudice to the respondents, the appeal raised important principles concerning the conduct of experts and the rights of litigants when an expert admits to an error. The court determined that these issues warranted further consideration and that the interests of justice were best served by allowing the appeal to proceed. Costs were to lie where they fell due to the delays caused by Ms Shores' conduct in her appeal.

Orders