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…

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 844
Case: [2024] NZHC 844
Decision Date: 18 April 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Ms. Mary Louise Shores appealed against a decision made by Judge A A Sinclair in the District Court at Auckland, dismissing her application for orders under s 317 of the Property Law Act 2007 to extinguish a right of way over her property at 30 Glengarry Avenue, Whangaparāoa, in favor of an adjoining property owned by the respondents at 28 Glengarry Avenue. The respondents, Charles Alan Howden and Carolyn Ann Howden, sought orders for access to the land over which their property had a right of way, which the Judge granted. Shores sought leave to adduce new evidence at the hearing of the appeal, which the respondents opposed. The legal issues before the Court were whether there were special reasons to admit the new evidence, given the principles governing the receipt of further evidence on appeal.

Justice Lang examined whether the proposed new evidence met the criteria for admission, considering the principles set out in B v A. The evidence in question included an affidavit from a civil engineer, Mr. Michael Martin, and an updated affidavit from another civil engineer, Mr. Jade Vaotogo, who had previously testified in the District Court. Shores argued that Mr. Vaotogo's updated conclusion was crucial for the Court to determine the appeal correctly. However, Justice Lang found that the new evidence was not fresh, as it could have been produced at the District Court hearing with diligence. Additionally, Mr. Vaotogo's new conclusion relied on the correctness of Mr. Martin's methodology, which had already been ruled inadmissible by Tahana J. Furthermore, admitting the new evidence would require the respondents to address an entirely new issue on appeal that they had not previously confronted. Justice Lang concluded that allowing the new evidence would be unfair and contrary to the principle of finality in litigation.

As a result, Justice Lang dismissed Shores' applications for leave to advance a second interlocutory application and to adduce new evidence. The respondents were awarded costs on a category 2B basis, together with disbursements as fixed by the Registrar.

Orders