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,…

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 [2023] NZHC 3811
Case: [2023] NZHC 3811
Decision Date: 20 December 2023

CaseChat Overview and Summary

The case of Shores v Howden involves a dispute between Mary Louise Shores and the Howdens, owners of neighbouring properties at 28 and 30 Glengarry Avenue, Whangaparāoa. The central issue is a right-of-way easement over Shores' property, which provides access to the Howdens' property. Shores, who is developing her property, has obstructed the right-of-way by erecting fence posts and breaking up the concrete driveway. The Howdens sought orders to restore the right-of-way, which the District Court granted, leading to Shores' appeal against that decision. Shores has applied to adduce new evidence on appeal, which the Howdens oppose, arguing that it is neither fresh nor relevant. The High Court must determine whether the new evidence can be admitted.

The legal issues revolve around the principles governing the admissibility of further evidence in an appeal. A party may adduce further evidence with the Court's leave if there are special reasons for hearing the evidence. Such reasons include matters that have arisen after the date of the decision appealed against and are relevant to the determination of the appeal. The Court must consider whether the evidence is fresh, credible, and cogent, and whether admitting it would serve the interests of justice. The Court must also ensure that the evidence is not merely bolstering the appellant's case with information that was available at the lower Court hearing.

The Court first examines whether Mr Martin's evidence, regarding the feasibility of constructing a collaborative driveway, should be admitted. The Court finds that the feasibility of reinstating the right-of-way as a compliant accessway was clearly before the District Court. The evidence before the District Court, including expert opinions from Mr Perman and Mr Vaotogo, addressed the implications of reinstating the driveway across the right-of-way, which would serve both properties. The Court finds Mr Martin's evidence to be contradictory and not fresh, as it seeks to change Shores' previous evidence rather than introduce new information. Additionally, the Court determines that there are no exceptional circumstances justifying the admission of Mr Martin's evidence, as relevant evidence already exists.

Regarding Shores' new evidence, the Court finds that the affidavit dated 11 September 2023, which includes resource consents granted on 23 December 2022 and an email from Land Information New Zealand, is relevant and updating. The Court accepts that this evidence is relevant and does not cause significant prejudice to the Howdens. The Court grants Shores' application to adduce her affidavit as evidence for the appeal but declines to admit Mr Martin's evidence.

The Court grants Shores' application to adduce her affidavit dated 11 September 2023 as evidence for the appeal but declines the application to adduce Mr Martin's evidence. The Court orders that the appeal can now be set down for hearing, with specific timetable orders for the preparation and filing of documents and submissions by the parties. The Court preliminarily decides that costs should lie where they fall but grants leave to file costs memoranda if the parties cannot agree.

Orders