Shores v Howden

[2024] NZHC 844

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-689

[2024] NZHC 844

UNDER

The Property Law Act 2007

IN THE MATTER OF

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

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:

17 April 2024

Appearances:

J K Potter for Appellant

J Hannan for Respondents

Judgment:

18 April 2024

JUDGMENT OF LANG J

[interlocutory applications]

This judgment was delivered by Justice Lang

On 18 April 2024 at 3.00 pm 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 844 [18 April 2024]

[1]    The appellant, Ms Shores, has appealed against a judgment delivered by Judge A A Sinclair in the District Court at Auckland on 17 March 2023.1 The appeal is scheduled to be heard on 24 July 2024.

[2]    The judgment under appeal dismissed an application by Ms Shores for orders under s 317 of the Property Law Act 2007 (PLA) extinguishing a right of way over Ms Shores’ property at 30 Glengarry Avenue, Whangaparāoa, in favour of an adjoining property situated at 28 Glengarry Avenue. That property is now owned by the respondents. The Judge also granted an application by the respondents for orders that they be granted access to the land over which their property has a right of way.

[3]    On 20 December 2023, Tahana J dismissed an application by Ms Shores to adduce new evidence at the hearing of the appeal.2 That evidence comprised an affidavit from a civil engineer, Mr Michael Martin. The Judge granted an application by Ms Shores to produce a resource consent, and an affidavit by Ms Shores. Ms Shores has now applied for leave to lodge a second application to adduce additional new evidence at the hearing of the appeal. The respondents oppose this application, as they did the first. They say the proposed new evidence does not meet the test for admission of new evidence on an appeal.

Approach

[4]    The factual background to the appeal is set out in some detail in the earlier judgment of Tahana J.3 I take the reader to be familiar with that narrative and do not propose to repeat it here. Similarly, Tahana J succinctly set out the principles to be applied in the present context. I gratefully adopt her summary:

[15]      A party to an appeal may adduce further evidence with the leave of the Court.4 The Court may only grant leave if there are special reasons for hearing the evidence.5 An example of a special reason is that the evidence relates to matters that have arisen after the date of the decision appealed against and they are or may be relevant to the determination of the appeal.6

1      Howden v Shores [2023] NZDC 4736.

2      Shores v Howden [2023] NZHC 3811.

3      At [6]-[12].

4      High Court Rules 2016, r 20.16(2).

5      High Court Rules 2016, r 20.16(3).

6      High Court Rules 2016, r 20.16(3).

[16]      The principles to apply when considering whether there is a special reason to allow the evidence were helpfully summarised in B v A as follows:7

[25]The relevant principles governing the receipt of further evidence are straightforward:

(a)the Court can receive further evidence if it thinks that the interests of justice require it to do so;

(b)it is wrong to allow an appellant to bolster his or her case with additional evidence that was available at the lower Court hearing, but not adduced because of the particular view of the case being taken at the time;

(c)admitting further evidence on appeal is exceptional rather than routine. A change of heart about how a case should have been run will not suffice. The prospect of further evidence triggering a substantial re-litigation before the appellate Court of the substantive case will count against admitting the further evidence;

(d)generally, the further evidence must be fresh, credible and cogent;

(e)evidence will not be regarded as fresh if it could, with reasonable diligence, have been produced at the trial;

(f)the absence of freshness is not an absolute disqualification. When the further evidence is not fresh, it will not generally be admitted unless the circumstances are exceptional and the grounds compelling. In addition, the further evidence needs to pass the tests of credibility and cogency;

(g)the interests of justice require the parties to put their best case forward at trial, in order to avoid wasting the Court’s limited time and resources. A high value is placed on finality when the parties have been afforded the opportunity and failed to take it; and

(h)the standard to be met is “rightly high”.

[5]    Like Tahana J, I need to determine whether these principles justify Ms Shores being permitted to adduce the new evidence.

7      B v A [2020] NZHC 580 (footnote omitted).

The proposed new evidence

[6]    Ms Shores seeks to place before the Court the evidence she gave in an affidavit in reply that she filed in support of the earlier application to adduce new evidence. This affidavit annexes documents that Ms Shores contends are relevant to the appeal.

[7]    In addition, Ms Shores seeks to adduce “updated’ evidence from Mr Jade Vaotogo, a civil engineer who gave evidence on her behalf  in  the  District  Court. Mr Vaotogo responded to aspects of the evidence given by Mr Steven Perman, a civil engineer called to give evidence on behalf of the respondents.   The affidavit that   Mr Vaotogo provided in the District Court contained the following paragraph:

23. The conclusion formed by Mr Perman records that access direct from Layton Road to the west side of the dwelling would be feasible but not practical. Mr Perman describes the requirements to achieve a compliant access which could include modification of existing retaining walls and ground works within the road reserve to achieve gradient requirements. I agree with the conceptual extent of works as described by Mr Perman and would not consider direct access from Layton Road a practical option.

(Emphasis added).

[8]    Mr Vaotogo now says that this evidence was mistaken. He has reviewed information provided by Mr Michael Martin, another expert engaged by Ms Shores. Mr Martin did not give evidence in the District Court and Tahana J declined to permit his evidence to be adduced in support of the appeal. Mr Vaotogo nevertheless wishes to rely on Mr Martin’s evidence because he says it has caused him to change his view.

[9]    In an affidavit provided in support of the present application, Mr Vaotogo deposes:

11.Unfortunately, I made [the statement set out above at [7]] in error, without giving it due consideration. My position has now changed. The basis of Mr. Perman’s high-level conceptual design for forming direct access from Layton Road to #28 is to tie into the existing ground level at the property boundary / edge of carport concrete to maintain existing functionality. However, with the consideration that ground works can be included within the #28 property boundary to form direct access, I now consider direct access to #28 from Layton Rd is feasible and practical.

12.At the time of my initial statement, I had based my assessment on accessing Property #28 from Layton Rd via the right-of-way (ROW) over Property #30. I maintain my position that such access is not reasonable. This conclusion is supported by the fact that a substantial amount of filling, specifically 1.3m to 2.7m, would be necessary to achieve this access. Considering the practical challenges and the significant amount of earthwork required, I stand by my assertion that accessing Property #28 via the ROW over Property #30 is not a viable solution. Designs prepared by Mr Michael Martin of Babbage Engineering are annexed hereto and marked “D”, I have reviewed these designs with my software and agree with them.

13.My initial assessment was based on compliance with the permitted activity standards of the Auckland Unitary Plan (AUP). However, I note that in my experience, Council may grant dispensation to exceed the maximum gradients as stated in the AUP.

14.On the basis that Council dispensation is provided to exceed maximum gradients as per AUP, I have been able to extend my initial analysis to include an assessment of direct access from the proposed driveway within Layton Rd to Property #28. Based on that analysis, and with the consideration that ground works can be included within the #28 property boundary, it is now clear I was mistaken when agreeing with Mr. Perman’s conceptual position and wish to correct my statement for the Court.

15.My expert opinion now is that it is viable to construct a direct accessway from Layton Road to 28 Glengarry Avenue. In my view, such an accessway is the most practical, feasible way to provide access to 28 Glengarry Avenue while also allowing development of #30. Creating direct access to 28 Glengarry Avenue eliminates the need for the disputed right of way across 30 Glengarry Avenue.

[10]   Ms Shores contends that Mr Vaotogo’s updated conclusion is important and will assist this Court to determine the appeal on a correct factual basis. She therefore contends she should be permitted to adduce the new evidence on appeal.

Analysis

The new evidence by Ms Shores

[11]   Ms Shores’ affidavit in reply was before Tahana J when she dealt with the earlier application, but for some reason the Judge did not determine whether it should form part of the material before the Court at the hearing of the appeal. Having reviewed the affidavit I am satisfied that the body of the document should not form part of the case on appeal. Ms Shores refers to several issues that are plainly irrelevant

to the appeal and her evidence can be viewed in many respects as a submission in support of the appeal.

[12]   However, following discussion with counsel I am satisfied it is appropriate to direct that some of the documents annexed to the affidavit should form part of the material before the Court when it hears the appeal. These fall into three categories:

(a)A document showing that Ms Shores’ land has been re-zoned since the date of the hearing in the District Court. Mr Hannan consents to the admission of this document, which relates to a matter of public record.

(b)Documents relating to agreements reached by the parties following the hearing in the District Court on several issues. Mr Potter properly abandoned this aspect of the application during the hearing before me because the documents could not assist the Court in determining the appeal.

(c)Documents relating to the issue of whether the Council knew of the existence of the right of way at the time it granted consent to Ms Shores to subdivide her land. Mr Hannan submits that this issue is irrelevant to the issues raised by the appeal. However, I am not in a position to determine whether that is the case. Counsel agreed that this aspect of the application could be resolved on the basis that, if the Judge who hears the appeal considers them to be relevant, he or she may have regard to both the documents produced by Ms Shores and those produced by Ms Jane Quinn in an affidavit sworn on 25 October 2023.

The new evidence by Mr Vaotogo

[13]   Given the agreement that the experts had reached in the District Court it is not surprising that the Judge referred only in passing to the fact that, on the evidence as it then stood, the development of an accessway directly from the rear of 28 Glengarry Avenue and Layton Road was not practicable and could not be constructed at a

reasonable cost.8 I therefore do not accept Mr Potter’s submission on Ms Shores’ behalf that this was a key issue at the hearing in the District Court. It was not an issue at all at that hearing.

[14]   It is also regrettable that Ms Shores did not advance the present application at the same time as her earlier application to adduce Mr Martin’s evidence. 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.

[15]   Further, Ms Shores has not established that the evidence is fresh. She 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.

[16]   There must also be a question as to whether Mr Vaotogo’s evidence is admissible in its present form in any event. His new conclusion does not rest on investigations he has carried out personally. Rather, it relies on the correctness of the methodology used  by  Mr  Martin.  However,  Tahana  J  has  already  ruled  that Mr Martin’s evidence is not admissible. Ms Shores has not appealed against that decision so it must be regarded as final. Given that Mr Martin will not be giving evidence, the material obtained by Mr Vaotogo from Mr Martin’s investigation would constitute hearsay evidence in terms of s 4 of the Evidence Act 2006. As a result, it will only be admissible if the criteria in s 18(1) of the Evidence Act are met. Mr Martin is plainly not available to give evidence as required by s 18(1)(b)(i).   However,     Mr Vaotogo has not explained why the Court can have reasonable assurance that the material provided by Mr Martin is reliable as required by s 18(1)(a).

8      Howden v Shores, above n 1, at [63].

[17]   In addition, if Mr Vaotogo’s new evidence is admitted it will be at odds with the evidence given by Mr Perman in the District Court. The cogency of Mr Vaotogo’s current conclusion is obviously undermined by the fact that Mr Perman, with whom Mr Vaotogo formerly agreed, has not been given an opportunity to comment on it.

[18]   All these factors suggest the new evidence should not be admitted. However, my greatest concern lies in my perception that Ms Shores is now re-crafting her case on appeal so that it is put to this Court on a very different basis to the approach taken in the District Court. 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.

[19]   The principle of finality in litigation is an important concept. As the Court of Appeal has observed, it is wrong to permit a party to an appeal to bolster his or her case with additional evidence that was available at the lower Court hearing but not adduced because of the particular view of the case taken at that time.9 I consider this principle is clearly engaged in the present case. Admission of the evidence would require the respondents to address an issue on appeal that they have never been required to confront in this litigation to date. I therefore consider it would be unfair and wrong in principle to permit this to occur.

9      Nation v Nation [2005] 3 NZLR 46 (CA) at [165], citing Castle v Castle [1980] 1 NZLR 14 (CA) at 17.

Result

[20]   The applications for leave to advance a second interlocutory application and to adduce new evidence are dismissed.

Costs

[21]   The respondents are entitled to costs on a category 2B basis together with disbursements as fixed by the Registrar.

Lang J