Street v Fountaine

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

CIV-2014-435-6 [2014] NZHC 2697

UNDER

Section 313 of the Property Law Act 2007

IN THE MATTER

of an application for relief concerning principally the land comprised in computer freehold registers WN40A/853 and WN564/201

BETWEEN

CHRISTOPHER JOHN STREET, PHILIP JOHN ENGLAND, MICHAEL JOHN STREET AND JOAN ISABELLA STREET

Plaintiffs

AND

REX ALISTAIR FOUNTAINE First Defendant

ASHBY DOWNS LIMITED Second Defendant

ANZ BANK NEW ZEALAND LIMITED Third Defendant

MARGARET ELIZABETH FOUNTAINE Fourth Defendant

Hearing:	22 October 2014
Counsel:	R K Macdonald for Plaintiffs T G Stapleton QC for First Defendant
Judgment:	31 October 2014

JUDGMENT OF GODDARD J

This judgment was delivered by me on 31 October 2014 at 3.00 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Nowland Gordon and Associates, Wellington for First Defendant

STREET v FOUNTAINE [2014] NZHC 2697 [31 October 2014]

Introduction

[1]      The plaintiffs are the trustees of the Homunculus Trust (the Trust) which owns and operates a farm (the Trust land) in the Wairarapa region.   The key representative of the Trust is Mr Street.

[2]      The plaintiffs seek interim relief against the first defendant, Mr Fountaine, for personal  access  to  a  40mm  pipeline  that  traverses  land  owned  or  connected  to Mr Fountaine, pending determination of their substantive claim.  The pipeline is part of the Lower Scheme of the Ahiaruhe Water Scheme (the Lower Scheme).

[3]      The source of water for the Lower Scheme is the land known as Aranui, which is owned by the second defendant, Ashby Downs Ltd.  The pipelines of the Lower Scheme are primarily on the property known as Waikaramu (owned by the first defendant’s family since 1949)  and partly on the properties known as The Downs (owned by Ashby Downs Ltd since 1957) and on the property known as Maungahuia (owned by Mr and Mrs Fountaine and Mr McKenzie as the trustees of the Maungahuia Fountaine Trust since 1997).

[4]      The  substantive  relief  sought  by  the  plaintiffs  is  for  an  easement  to  be registered over Waikaramu to take and convey water, which would permit them access to Waikaramu for inspection and maintenance.

The positions of the parties

[5]      The plaintiffs’ position is that their statement of claim discloses a serious question to be tried and the balance of convenience favours the grant of interim relief. Alternatively, the plaintiffs submitted that the Court should enforce an interim access agreement reached between the parties in 2011.

[6]      On behalf of Mr Fountaine, Mr Stapleton QC submitted that the plaintiffs have  no  real  prospect  of  success  in  their  substantive  claim  because  neither Mr Fountaine  nor  his  father  (the  previous  owner  of  Waikaramu)  agreed  to  an easement over Waikaramu.   In the event that it becomes necessary to consider the balance  of  convenience,  Mr  Stapleton  submitted  interim  relief  would  not  be

necessary to preserve the status quo pending determination of the substantive proceedings, as the Fountaines are prepared to allow a registered plumber to access the property on behalf of the Trust.

The…