Shores v Howden

[2023] NZHC 3811

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2023-404-000689

[2023] NZHC 3811

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

Hearing:

7 November 2023

Appearances:

S Russell for the Appellant

J Hannan & P Brash for the Respondents

Judgment:

20 December 2023

JUDGMENT OF TAHANA J

(Application to adduce evidence)

This judgment was delivered by me on 20 December 2023 at 11.00am 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 (Application to adduce evidence) [2023] NZHC 3811 [20 December 2023]

Application to adduce evidence for appeal

[1]        Ms Mary Shores applies to adduce new evidence on appeal. The respondents (the Howdens) oppose and say the new evidence is not fresh, cogent or relevant.

[2]        Ms  Shores  and  the  Howdens  own  neighbouring  properties  at  28  and   30 Glengarry Ave, Manly, Whangaparāoa. Ms Shores is in the process of developing her property which will include subdividing it into two lots and building a new house. There is a right of way easement over Ms Shores’ property for the benefit of the Howdens’ property. Ms Shores erected fence posts and broke up the concrete driveway over the right of way.

[3]        The Howdens applied to the District Court for orders requiring Ms Shores to remove the fence posts and reinstate the concrete driveway. Ms Shores filed a cross- application to extinguish the right of way. Judge A A Sinclair declined to extinguish the right of way and ordered Ms Shores to remove the fenceposts and reinstate the concrete driveway.1

[4]        Ms Shores appeals Judge Sinclair’s decision and applies to adduce as further evidence two affidavits dated 11 September 2023:

(a)an affidavit of Ms Shores attaching a resource consent decision dated 23 December 2022 and an email dated 29 November 2019 from Land Information New Zealand (LINZ) / Toitū te Whenua; and

(b)an affidavit of Mr Michael James Martin, a civil engineer, addressing the feasibility of constructing a common driveway over the right of way that complies with the local authority regulations and which does not require Ms Shores to move her proposed carparking platform.

[5]        I therefore need to determine whether the above new evidence can be adduced for the purposes of Ms Shores’ appeal. Before considering that issue, I briefly set out the relevant background and the District Court decision under appeal.

1      Howden v Shores [2023] NZDC 4736.

Background

[6]        The titles to the neighbouring properties were established in the 1960s. A right of way was created from Glengarry Ave to the east of the properties, which provides primary access to these two sections. To the west, the sections are boarded by an unformed extension to Layton Rd.

[7]        The sections were subsequently sold in 1966, and on 22 July 1966 a right of way over the corner of 30 Glengarry Ave was created for the benefit of 28 Glengarry Ave.

[8]        No house was built on 30 Glengarry Ave. The section was purchased in 1971 and was then inherited by Ms Shores in 2018.

[9]        In 1997, 28 Glengarry Ave was subdivided into two lots to become 28 and 28A Glengarry Ave. The existing house was on the 28 Glengarry Ave lot. New titles were issued. The record of title for 28 Glengarry Ave recorded the right of way over 30 Glengarry Ave. The title for 30 Glengarry Ave did not include any record of the right of way.

[10]      In late 2003, the Howdens purchased 28 Glengarry Ave. At the time there was a broken concrete driveway over the right of way. The Howdens replaced this with an upgraded reinforced concrete driveway.

[11]      In early 2019, Ms Shores and her partner started to clear 30 Glengarry Ave so they could subdivide the property into two lots. A house was moved onto the lower part of the property and a retaining wall was built. Ms Shores’ partner broke up the concrete  driveway  and  erected   fenceposts   preventing   vehicle   access   from   28 Glengarry Ave over the right of way.

[12]      The Howdens approached LINZ to  correct  the  memorial  on  the  title for 30 Glengarry Ave. The title was amended to record the full sets of rights and obligations which included the right of way. The Howdens then applied to the District Court for orders requiring Ms Shores to reinstate the concrete driveway.

District Court decision

[13]      Judge Sinclair declined to extinguish the right of way and ordered that access be restored.2 Judge Sinclair directed the parties to engage in discussions and/or mediation to agree an approach that would allow both parties to use the right of way to access their respective properties. The parties were unable to agree, and Judge Sinclair made orders requiring Ms Shores:

(a)to remove all obstructions preventing vehicular access over the right of way on 30 Glengarry Ave; and

(b)to reinstate on the right of way a reinforced concrete driveway.

[14]      If Ms Shores fails to comply then the Howdens are authorised to enter upon the property at 30 Glengarry Ave and carry out the work to reinstate the concrete driveway.

Leave to adduce further evidence

[15]      A party to an appeal may adduce further evidence with the leave of the Court.3 The Court may only grant leave if there are special reasons for hearing the evidence.4 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.5

[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:6

[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;

2      Howden v Shores [2023] NZDC 4736; and Howden v Shores [2023] NZDC 12363.

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

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

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

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

(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”.

[17]      I therefore need to determine whether the above principles support granting Ms Shores’  application  to  adduce  the  new  evidence.  I  first  consider  whether Mr Martin’s evidence should be adduced before considering the evidence of Ms Shores.

Should leave be granted to adduce Mr Martin’s evidence?

Is the evidence fresh?

[18]      Mr Russell for Ms Shores argues that the issue of a “collaborative driveway” was not before the District Court. That it was therefore unnecessary to adduce evidence on this issue as the Howdens were simply seeking to reinstate the driveway and Ms Shores was seeking an extinguishment. It is argued that the option of a “collaborative driveway” was not therefore before the District Court and it was Judge Sinclair who directed the parties to engage on this issue.

[19]      The contention that the issue of a “collaborative driveway” was not before the District Court ignores the requirements of Schedule 5 of the Property Law Act 2007 (PLA). Clause 1 of Schedule 5 indicates that both the grantee (the Howdens) and grantor (Ms Shores) have the right to go, pass, and re-pass over and along the land over which the right of way is granted. It therefore follows that if any right of way is to be reinstated, it must comply with this requirement. That is a fundamental aspect of a right of way, so was clearly before the District Court.

[20]      I also reject Mr Russell’s submission that the evidence is only necessary because Judge Sinclair directed the parties to collaborate. The purpose of the direction was to encourage the parties to try to agree on how the driveway was to be reinstated and not to reopen the issue of whether it was feasible to do so.

[21]      Mr Hannan for the Howdens says that there was evidence before the Court on the implications of reinstating the right of way, which by definition requires that access be provided to both 28 and 30 Glengarry Ave. In contrast, Mr Russell says that the District Court “did not have an adequate evidential basis to make their finding which is why this further evidence is needed.” It is therefore necessary to consider the evidence that was before Judge Sinclair.

Was there evidence before the District Court as to the use of the right of way to access both properties?

[22]      At the hearing before the District Court, Ms Shores argued that the right of way is uneconomic to develop and therefore any benefit of the right of way being a compliant accessway is significantly lessened.7 The Howdens adduced evidence from an expert engineer, Mr Steven Perman, that the costs to form an accessway were approximately $5,000. Mr Jade Vaotogo, a civil and structural engineer, gave expert evidence for Ms Shores in response to Mr Perman’s evidence.

[23]      Mr Vaotogo’s firm had been engaged to carry out civil design and consent drawings for the proposed subdivision at 30 Glengarry Ave.8 Mr Vaotogo agreed with Mr Perman that an accessway direct from the back of 28 Glengarry Ave to Layton Rd

7      Howden v Shores [2023] NZDC 4736 at [58].

8 At [62].

is not practicable and nor could it be constructed at a reasonable cost.9 The affidavit of Mr Martin contradicts Mr Vaotogo’s evidence in this regard.

[24]It is helpful to set out Judge Sinclair’s findings in relation to the evidence:

[64]      With regard to the right-of-way over 30 Glengarry, Mr Perman examined the relevant grades and was satisfied that the current access across the right -of-way appeared to meet the requirements of the Auckland Unitary Plan. He noted that the existing grades of access vary from 10% to 23%. Additional retaining structures were not required and adjustments to elevations to the carport area were also not required.

[65]      Mr Vaotogo took a different view. He gave evidence that his firm had assessed the existing right-of-way easement and considered that it was non- compliant. He asserted that applying the maximum gradient requirements for accessways within the road boundary, the maximum gradient of 25% was exceeded for approximately 8m.

[66]      Mr Vaotogo concluded that based on the firm’s concept design, a greater area of land outside the current right-of-way easement would be required to achieve a compliant accessway that served 28 Glengarry. Construction of supporting retaining walls may also be required.

[67]      Mr Duthie gave evidence on compliance issues relating to the right of way. Commenting on Mr Vaotogo’s evidence, he stated:

Mr Vaotogo believes the gradient exceeds 25% for a 7.9 2m length. Most of the excess gradient over 25% is at 27.9% and 26.21 % with a very short section, .5m at 36.79%.

A complying gradient is 25%. A steeper gradient will trigger a restricted discretionary activity consent.

Mr Duthie discussed the gradients in more detail and was of the view that any issues could be successfully managed. He concluded that “this is a consentable proposition as a restricted discretionary activity consent”.

[68]      Mr Duthie went on to deal with a second issue relating to the turning curve of gaining access from Layton Road to the right-of-way easement. Again, he considered that this was a matter which could be managed.

[69]      Mr Vaotogo’s gradient calculations clearly differ from those of Mr Perman. However, I accept Mr Duthie’s evidence that even if Mr Vaotogo’s calculations are correct, the right of way would still be a consentable proposition as a restricted discretionary activity.

[25]      Judge Sinclair considered the evidence of both Mr Vaotogo and Mr Duthie, an expert in planning, as to whether the right of way was able to be consented and

9 At [63].

ultimately accepted Mr Duthie’s evidence that the right of way could be consented as a restricted discretionary activity. The above indicates that there clearly was an evidential basis on which the Court could determine the implications of allowing the driveway across the right of way to be reinstated.

[26]      Mr Martin opines as to the nature of the evidence before the District Court as follows:

[10] I note that the previous expert evidence in this matter provided engineering designs that showed what would occur if the ROW was extinguished or if the ROW was to be used as an accessway primarily to 28 Glengarry Avenue.

…

[15] No expert evidence has been provided that demonstrates the design of a collaborative accessway over the ROW which would use the land subject to the ROW to allow access to 28 Glengarry and allow 30 Glengarry to build their parking platform as set out in their subdivision plans.

[27]      I reject Mr Martin’s characterisation of the evidence. A right of way by definition must provide for access to both properties so it is wrong to refer to the evidence as only addressing “an accessway primarily to 28 Glengarry Avenue.” Further, Mr Martin ignores Mr Vaotogo’s evidence which addressed potential issues with reinstating the driveway including the gradient, the potential need for additional land and potential need for further supporting retaining walls. Mr Vaotogo’s evidence also considered whether the right of way would be compliant.

[28]      There was therefore clearly evidence before the District Court as to the implications of reinstating the driveway across the right of way, the driveway which would be used to access both properties.

[29]      Mr Martin’s evidence is in direct contradiction to Mr Vaotogo’s evidence that direct access to 28 Glengarry Ave is not feasible. The purpose of Mr Martin’s evidence appears to be to change Ms Shores’ evidence that was before the District Court. That indicates that the evidence is not “fresh.” Further, it indicates that the purpose of the application is to bolster Ms Shores’ appeal and not to admit evidence that was not before the District Court.

[30]      Mr Russell then argues that even if Mr Martin’s evidence could have been adduced before the District Court, there are nevertheless exceptional circumstances that justify admitting the evidence. I therefore consider whether exceptional circumstances exist justifying the admission of Mr Martin’s evidence.

Are there exceptional circumstances justifying the admission of Mr Martin’s evidence?

[31]      Mr Russell says that if Mr Martin’s evidence is not allowed to be adduced, then it will be challenging for this Court to determine the appeal because there is no evidence before the Court as to the engineering feasibility or cost of the District Court’s orders.

[32]      There is the expert evidence of Mr Perman, a senior transportation engineer, who concludes that the existing rear property access using the existing right of way is the most practical and viable access option. That evidence directly addresses the engineering feasibility of reinstating the right of way. Mr Perman also estimates the costs of constructing a concrete accessway is $5,000. That evidence is directly relevant to the feasibility and cost of the District Court’s orders.

[33]      There is also the expert evidence of Mr Vaotogo who gave evidence as to a driveway to serve 28 Glengarry Ave and a new lot at 30 Glengarry Ave. Mr Vaotogo noted the maximum allowable driveway gradient serving two lots is 20 per cent and he considered an additional 25.5 square metres of land would be required beyond the easement boundary, as well as the placement of fill and associated construction of retaining walls to create a compliant accessway. Mr Vaotogo does therefore address the engineering feasibility of enforcing the District Court’s orders.

[34]      Ms Shores’ assertion that she did not instruct Mr Vaotogo to provide expert evidence on engineering design, feasibility and costing for a common vehicle accessway across the right of way is at direct odds with the affidavit of Mr Vaotogo dated 14 May 2021. That evidence directly addresses the issue of using the right of way to access 28 Glengarry Ave and a new lot at 30 Glengarry Ave.  The fact that  Ms Shores had counsel and the fact that the affidavit was filed with the District Court contradicts Ms Shores’ evidence that she did not instruct Mr Vaotogo to prepare that evidence.

[35]      Given that evidence already exists and was before the District Court, I do not consider it would be just, speedy or inexpensive to allow the new evidence. The Howdens have received an estimate of $16,000 if they are required to adduce evidence in response to Mr Martin’s evidence. There is therefore significant prejudice to them if Mr Martin’s evidence is adduced.

[36]      I do not consider that the fact that evidence was provided by way of affidavit in the District Court constitutes an exceptional circumstance which justifies allowing Ms Shores to introduce further affidavit evidence.

[37]      I do not consider that Ms Shores’ assertion of a conflict of interest on the part of Mr Vaotogo is credible in circumstances where she says that “Mr Vaotogo confirmed that he and Mr Duthie had worked together in the past.” That fact alone, without more, does not indicate that Mr Vaotogo had a conflict of interest or that he was in any way influenced by the fact that he had previously worked with Mr Duthie. The purpose of Mr Martin’s evidence appears to be to bolster Ms Shores’ case in circumstances where she is no  longer  happy  with  the  evidence  of  her  expert  (Mr Vaotogo). That is not a special reason for allowing the evidence.

[38]      Ms Shores also relies on Nation v Nation where the Court of Appeal considered that the appellant had not had a fair opportunity to address an issue and further evidence was required on that discrete issue.10 The Court of Appeal was satisfied that the interests of justice were best served by remitting the matter back to the Family Court to address the issue as there was no evidence to quantify the wife’s claim. I consider that Nation v Nation is distinguishable because here there is expert evidence from Mr Vaotogo, Mr Perman and Mr Duthie as to the feasibility and cost of reinstating the right of way so that both 28 and 30 Glengarry Ave can use it. This is not a case in which Ms Shores can be said to have been taken by surprise nor one where she has not had the opportunity to adduce evidence.

[39]      For the reasons set out above, I am not therefore satisfied that there are exceptional circumstances justifying the admission of the evidence of Mr Martin.

10     Nation v Nation [2005] 3 NZLR 46 (CA).

Should leave be granted to admit the new evidence of Ms Shores?

[40]      Ms Shores has filed an affidavit dated 11 September 2023 attaching resource consents granted on 23 December 2022, and an email from LINZ, which her counsel says was inadvertently omitted from her evidence before the District Court.

[41]      Counsel for the Howdens says that evidence as to the resource consents is not relevant and refer to Bowen v Piccadilly Arcade Body Corporate S79616.11 While I acknowledge that Bowen considered that the existence of a right of way may have the incidental benefit to the owners of the benefitted land of impeding possible redevelopment of the burdened land, I do not consider it is authority for not allowing updating evidence that is relevant to how the owner of the burdened land intends to develop the land. While a resource consent may not be relevant to the enforcement of rights under an easement, it may be relevant to s 317(b) of the PLA when considering whether the continuation in force of the easement would impede the reasonable use of the burdened land in a different way, or to a different extent, from that which could reasonably have been foreseen by the original parties to the easement.

[42]      Ms Shores also seeks to adduce evidence of an email from LINZ which discusses an amendment to the title for 30 Glengarry Ave.

[43]      I accept that this updating evidence is relevant and will not cause prejudice to the Howdens as it does not require the Howdens to incur significant costs in responding to it.

[44]      Ms Shores’ affidavit is updating evidence, and while the LINZ email could have been adduced earlier, I do not consider that it causes any prejudice and it will enable the Court to have the full picture as to the status of the titles.

Result

[45]      I grant Ms Shores’ application to adduce her affidavit dated 11 September 2023 as evidence for the appeal. I otherwise decline the application.

11     Bowen v Piccadilly Arcade Body Corporate S79616 [2022] NZHC 1652.

[46]      The appeal can now be set down for hearing and I make the timetable orders sought in the joint memorandum of counsel dated 28 July 2023 (with adjustments to take account of the upcoming holiday period):

(a)by 23 February 2024, Ms Shores must file and serve a common bundle of paginated and indexed copies of all relevant documents in accordance with clause 8 of schedule 6 of the High Court Rules 2016;

(b)the parties must record in the index to the common bundle any objections to documents which either party wishes to have included in the common bundle;

(c)by 1 March 2024, Ms Shores must file and serve her submissions and a chronology in accordance with clause 11 of schedule 6;

(d)by 8 March 2024, the Howdens must file and serve their submissions, and if required a separate chronology, in accordance with the requirements of clause 12 of schedule 6;

(e)Ms Shores is to prepare a bundle of any authorities referred to in the submissions which counsel consider should be produced, the bundle to be filed five working days before the appeal is heard.

(f)The Registry is to allocate a one day hearing on the first available date after 15 March 2024.

Costs

[47]      Ms Shores has partially succeeded in her application but has been unsuccessful in seeking to adduce the evidence of Mr Martin. My preliminary view is that costs should lie where they fall. If the parties do not agree, leave is granted to file costs

memoranda. I will then deal with the issue of costs on the papers.

Tahana J