Tangikaroro and Whakaangiangi Kaitiaki Group Trust v Ingleby New Zealand LP
[2025] NZHC 2912
•3 October 2025
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CIV-2025-416-9
[2025] NZHC 2912
BETWEEN THE TANGIKARORO AND WHAKAANGIANGI KAITIAKI GROUP TRUST
PlaintiffsAND
INGLEBY NEW ZEALAND LP
First Respondent
INGLEBY NZ HOLDINGS LIMITED
Second RespondentINGLEBY HOLDING APS
Third Respondent
Hearing (by VMR): 10 September 2025 Counsel:
W Wanoa (Junior) as a Trustee for Plaintiffs A M Cameron for Respondents
Judgment:
3 October 2025
JUDGMENT OF GENDALL J
Introduction
[1] The defendants (collectively Ingleby) own and manage over 40 farm properties across a number of countries, including New Zealand. In about 2007, the first defendant (Ingleby NZ) acquired Katoa Station, covering 585 hectares in Te Araroa, East Cape. This formed part of its existing sheep and beef farming operation on the East Cape. In March 2025, Ingleby NZ lodged notices to undertake permitted afforestation activities upon Katoa Station under the Resource Management (National Environmental Standards for Commercial Forestry) Regulations 2017 (NES-CF) with
THE TANGIKARORO AND WHAKAANGIANGI KAITIAKI GROUP TRUST v INGLEBY NEW ZEALAND LP [2025] NZHC 2912 [3 October 2025]
Gisborne District Council. This was because Ingleby NZ had assessed that its farmland in East Cape was no longer viable for pastoral farming.
[2] The Tangikaroro and Whakaangiangi Kaitiaki Group Trust (TWKG Trust) is a private Māori Kaitiaki Group Trust that is a whenua kaitiaki (land guardian) over the Tangikaroro Native Reserve and Sacred Whenua (the TNR Reserve). The Reserve which adjoins a portion of the Katoa Station is said to be a protected area of significant environmental, social and cultural importance to Ngāti Porou hapū, iwi and whānau.
[3] On 28 May 2025, the TWKG Trust filed a statement of claim against the three defendants Ingleby New Zealand LP, Ingleby NZ Holdings Ltd, and Ingleby Holding ApS.1 The Trust alleges that, through its mass planting programme of pine tree planting (PTP) afforestation on Katoa Station, Ingleby has contravened and breached the Resource Management Act 1991 (RMA), Overseas Investment Act 2005 (OIA), Conservation Act 1987, Te Tiriti o Waitangi and the Treaty of Waitangi, as well as having committed public and private nuisance. Under that statement of claim, TWKG Trust seeks declarations that Ingleby are not to undertake any planning, preparation and/or execution of PTP and/or afforestation activities of any kind on Katoa Station for a specific period of time. This specific period is to be until such time, sufficient and satisfactory expert reporting has been obtained which either shows that the PTP and afforestation could proceed properly, or that it cannot proceed. In the event of this expert reporting indicating that the PTP and afforestation could not properly proceed a permanent mandatory injunction would be needed and is sought. The Trust also seeks a declaration that the expert reporting is to be done in full consultation with the Trust, Māori and all affected whenua kaitiaki, that Ingleby enter into proper consultation with tangata whenua and the Trust in accordance with tikanga Māori and Treaty principles, and that Ingleby obtain any necessary consents or variations to those consents reasonably required under the law and constitutional frameworks.
[4] The TWKG Trust claims that the planned PTP programme will detrimentally impact the Reserve, as it will make it vulnerable to landslips, erosion and sedimentation, water depletion, the spread of wilding pines, damage to native flora
1 As I note above, the defendants collectively will be simply referred to as “Ingleby”.
and fauna and inhabitant species, destruction or desecration of wāhi tapu including burial sites and traditional pathways, and harm to Te Ao Māori.
[5] On 16 June 2025, the TWKG Trust filed an on-notice application for a mandatory injunction and preservation orders. The Trust seeks orders to stop and restrain the defendants and any parties from doing any planning, preparation and/or execution of any pine tree planting activities on Katoa Station, and to maintain the status quo of Katoa Station. It seeks those orders until the ultimate hearing and determination of the statement of claim, or alternatively on a temporary basis until the continuation of those temporary orders can be addressed before the Court.
[6] On 1 July 2025, the defendants filed an application to strike-out the TWKG Trust’s claims on the basis the statement of claim discloses no reasonably arguable cause of action or case.
Background
[7] The TNR Reserve was reportedly established in 2006. Its purpose is stated partly as being to support the restoration and continued care of rare, threatened and endangered indigenous species in a managed sanctuary. These species include Brown Kiwi, North Island Robin, Saddleback and Weka, alongside a variety of reptiles, invertebrates and endangered plants said to be found nowhere else in the East Coast District and Region. The area is also said to have been a pataka kai or source of food for local Māori, and to be rich in other resources necessary for the building of whare and waka, weaving, and tool making.
[8] In around 2006, Ingleby NZ sought Overseas Investment Office approval to acquire the 585-hectare Katoa Station farm. Approval was granted on 6 June 2007, after which Ingleby NZ completed the purchase of the property. The rationale for acquiring the Station was to farm the land in conjunction with Ingleby’s existing East Coast farming operations at Pakira and Waikura Stations. In late 2011, as I understand it, those other stations were sold to Monte Forestry Ltd.
[9] In early 2022, Ingleby began reviewing its East Cape investments following the severe storms that had hit the region between 2020 and 2022. Clearly, these storms
had tested the viability of pastoral farming in those particular locations. It is broadly claimed that those assessments confirmed that the continued use of Katoa Station for pastoral farming was no longer viable. While efforts were made to market the balance of the properties for sale in late 2024, Ingleby decided to retain the farms and explore other opportunities. These included the potential conversion of part of their farms into commercial forestry.
[10] On 21 March 2025, as I have noted above, the Forest Manager for Ingleby NZ lodged with the Gisborne District Council a notice to undertake permitted plantation forestry activities on Katoa Station under the NES-CF. This notice provided details of the required location where the afforestation was to occur and the proposed setbacks, and the dates on which the afforestation was planned to begin and end. The areas proposed to be planted under the notice were all zoned as yellow or orange areas under the relevant erosion susceptibility criteria in the NES-CF. No red-zoned areas were proposed to be planted in the current planting season. Nor was any planting proposed within the required set back areas from waterways, again as required under the NES- CF.
[11] The TWKG Trust claims that it was only shortly before this proceeding was commenced that Ingleby cleared Katoa Station’s whenua and removed all livestock cattle in preparation for PTP afforestation. At that time, it also engaged with contractors for works relating to the afforestation. The TWKG Trust says too that Ingleby failed to notify the Trust or affected tangata whenua of their impending PTP afforestation activity, nor did it consult with them on this aspect in any way.
[12] Then, on 10 June 2025, the Gisborne District Council confirmed that acknowledgement letters received by Ingleby served as confirmation that the permitted activity notice for Katoa Station was accepted from the date received.
[13] Then, on 7 July 2025, Ingleby received an email from the Regional Consents team at the Gisborne District Council requesting further information on the afforestation programme at Katoa Station. The Council requested copies of:
(a)the afforestation management plan for the permitted work;
(b)details of the suitably qualified person who undertook the wilding risk calculation; and
(c)an assessment of wilding tree risk for each relevant area of forest.
[14] That information, Ingleby says, was provided by it on or about 18 July 2025. In this information, Ingleby noted changes that had been made since the original permitted activity notice was lodged. This included the removal from planting of red- zoned areas (which was to take place in the following planting season), and from other steeper land. Ingleby committed to providing the Council with an update on final planting boundaries once planting was completed. It also provided an additional wilding risk assessment for lea sites where there was a downwind risk (namely native vegetation with gaps). No wilding risk assessments were submitted where there was no downwind risk (such as where it affected pasture or production forest) as this resulted in an immediate score of zero.
[15] Following the provision of that information, on 24 July 2025, the Forestry Team Leader at the Gisborne District Council, Mr Shelton, undertook an inspection and produced a monitoring report. In that report he noted the inspection went “really well” and that it was clearly demonstrated that there was “good and meaningful afforestation practices being undertaken in accordance with the NES-CF”. The inspection however did identify a number of minor non-compliance areas. These are said to have been subsequently addressed by Ingleby’s farm manager.
Evidentiary matters
[16] On 5 September 2025, I granted to the TWKG Trust an extension to earlier timetabling orders to enable further evidence to be provided for the hearing before me on 10 September 2025. No new evidence however was to be filed after 4.00 pm on 8 September 2025. Several further affidavits, all unsworn, were purported to be filed then on behalf of the TWK Trust. One affidavit, dated 8 September 2025, that of Mr Perich, (appended to which was a cultural report), was not filed until late on 9 September 2025. Mr Wanoa explained that this delay was due to the affidavit being mistakenly filed elsewhere, perhaps at the Court in Tauranga. Counsel for Ingleby, however although somewhat reluctant, did not oppose the unsworn affidavit and the
appended cultural report being admitted and considered by the Court. Accordingly, I confirmed I was willing to consider it here and have done so.
[17] An earlier affidavit for the Trust from Mr Wanoa dated 23 May 2025 was signed. His later affidavit dated 9 July 2025, and that of Mr Henare and Mr Perich, are neither signed nor witnessed. It is also noted that Mr Perich’s evidence appears to be relied on by the TWKG Trust as expert evidence. However, Mr Perich’s affidavit contains no statement that, as an expert, he has read and agreed to comply with the appropriate code of conduct. Such evidence can only be offered with leave of the Court.2 No such leave was sought here but nevertheless I place that aspect on one side. Mr Perich’s expertise also, it appears, relates to applying tikanga Māori, Te Tiriti and kaupapa Māori practices to financial services, rather than environmental matters. While I will still consider his evidence here, I note that these matters weigh to an extent on its probative value.
Applications for determination
[18] As I have noted at [5] and [6] above, the present applications before the Court for determination are:
(a)An interlocutory application by TWKG Trust for an interim injunction and preservation orders.
(b)Applications by Ingleby for strike-out of all TWKG’s claims and/or for security for costs and a stay of the proceeding.
[19]Both applications are opposed.
[20] It is convenient here to consider first Ingleby’s strike-out, security for costs, and stay applications. I now proceed to do this.
2 High Court Rules 2016, r 9.43.
Strike-out application
Legal principles
[21] Rule 15.1(1)(a) of the High Court Rules 2016 (HCR) provides that the Court may strike-out all or part of a pleading if it discloses no reasonably arguable cause of action. The general approach to strike-out is well-established:3
(a)Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations where are entirely speculative and without foundation.
(b)The cause of action or defence must be clearly untenable.
(c)The jurisdiction is to be exercised sparingly, only in clear cases. This reflects the Court’s reluctance to terminate a claim or defence short of trial.
(d)The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.
(e)The Court shall be particularly slow to strike-out a claim in any developing area, perhaps particularly where a duty of care is alleged in a new situation.
(f)The Court must be mindful of the well-established principle that if any deficiencies can be cured by an amendment to the pleadings, allowing the claim to proceed on the condition the necessary amendments are made is preferrable to strike-out.
3 Smith v Fonterra Co-operative Group Ltd [2022] NZCA 552, [2022] 2 NZLR 284 at [38], cited with approval in Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5, [2024] 1 NZLR 134 at [78]. See also Ferguson v Chief Executive of the Department of Corrections [2024] NZHC 1457 at [85] citing Jessica Gorman and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR15.1.02] and Attorney-General v Prince & Gardiner (1998) 1 NZLR 262 (CA).
Ingleby’s submissions
[22] Mr Cameron for Ingleby submits that no reasonably arguable cause of action has been disclosed in the Trust’s pleadings, as:
(a)In terms of the RMA, s 5 is non-justiciable, ss 6–8 are not engaged as they apply to persons exercising powers and functions under the RMA such as local authorities, and the duty under s 17 is not enforceable against any person, nor is any person liable to another for a breach of that duty. To the extent the allegations assert breach of the RMA more broadly, this is said to be speculative and without foundation. The evidence of Mr Creese filed on behalf of Ingleby is relied on here. This, it is said, establishes that afforestation is being undertaken pursuant to reg 9 of the NES-CF, as confirmed in the Council’s inspection report. Section 36A of the RMA is said to preclude a duty to consult here. Carter Holt Harvey Ltd v Te Runanga o Tuwharetoa ki Kawerau is also relied on for the premise that it would be wrong in principle to impose an obligation on individual or corporate citizens to consult with tangata whenua interests where there is no other obligation to do so.4
(b)With respect to the alleged breach of the Overseas Investment Act (OIA), this pleading it is claimed is so broad as to be unintelligible. This means Mr Cameron argues that it is unclear what actions are said to have breached the OIA, or what section of the Act has been breached. It is submitted there is no duty to consult either under the OIA or at common law, and that all requirements imposed by the Office as a condition of consent were completed prior to transfer.
(c)The Conservation Act 1987 simply does not apply. This is because there is no planting proposed in the limited area of the Station subject to the Conservation Act, namely along the Taurangakautuku River.
4 Carter Holt Harvey Ltd v Te Runanga o Tuwharetoa ki Kawerau [2003] 2 NZLR 349 (HC) at [55](c).
(d)Te Tiriti and the Treaty do not impose legal duties on private individuals to act in a treaty consistent manner and similarly do not assist the Trust’s claim here.
(e)In relation to the claims of private and public nuisance, it is contended that there is no pleaded interference with public rights, given the claim asserts breach and contravention of an alleged right to proper consultation and compliance with all other assessments, processes and safeguards. There is also said to be no nuisance, with the Trust’s claim being advanced on the basis of future harm, and accordingly it seeks, in effect, a quia timet injunction. It is observed the threshold for such an injunction is high, and Mr Cameron claims there is no pleading of fact which supports the existence of such circumstances. Regardless, he contends this would be pure speculation, with Mr Creese’s evidence demonstrating the low risk of wilding pine spread.
[23] If aspects of the claim are found to survive strike-out, Ingleby seeks too an order for security for costs in the amount of $50,000 and a stay of the proceedings pending payment. Mr Cameron notes the Trust is seeking a grant of legal aid, raising doubts as to its ability to pay. He says the Trust has also refused to provide particulars as to its identity, which means Ingleby has no means of assessing its ability to pay. Allowing the litigation to proceed without checks and the protection of security would be oppressive to Ingleby’s interests he contends. This is because the claim is entirely without merit, and if the matter proceeds to trial, a significant amount of expert evidence will likely need to be called. Mr Cameron also maintains a hearing of this nature is likely to require up to five days’ hearing time, with the overall scale costs estimated at $66,920 on a Category 2B basis. He notes that a security sum of $50,000 was fixed by Paul Davison J in Keez Ltd v Waikato District Health Board against an estimated five days of hearing time and scale costs of $63,813.5
5 Keez Ltd v Waikato District Health Board [2020] NZHC 2330 at [49]–[52].
TWKG Trust’s submissions
[24] Mr Wanoa, on behalf of the Trust, rejects the assertions that the statement of claim discloses no reasonably arguable causes of action. This is on the basis he says that:
(a)In terms of the RMA, whether Ingleby has complied with the NES-CF remains a live issue and so the defendants’ reliance on full compliance does not support strike-out, nor does it displace any duty under s 17 of the RMA. The policy is also said not to account for afforestation next to sensitive land within a Māori Native Reserve. Sections 5–8 of the RMA are said to inform the Court’s evaluation of declarations and enforcement orders under ss 310–319 of the RMA, and remain part of the legal matrix within which compliance, effects, and relief are to be determined. The Supreme Court in Smith v Fonterra, it is said, has recently cautioned against threshold applications to pre-empt complex environmental claims, recognising too that tikanga may inform duties. Remedies, it is claimed, should not be excluded at strike-out.6 Section 36A is said to only prevent councils from rejecting an application for failure to consult, with Mr Wanoa also contending that Carter Holt Harvey Ltd v Te Runanga o Tuwharetoa ki Kawerau7 determined only that private actors are not automatically saddled with a free-standing, universal duty to consult. The fact Ingleby is a foreign participant operating under statutory license is also said to dilute any attempt to extrapolate Carter Holt into a blanket shield against engagement with tangata whenua.
(b)In relation to the OIA, the Trust argues a material change of use to commercial forestry required disclosure to, and potentially a variation from, the OIA regulator and the Overseas Investment Office. Therefore, if the land use was changed without engagement with the regulator, it is claimed this amounts to non-compliance. The OIA also
6 Smith v Fonterra [2024] NZSC 5.
7 Carter Holt Harvey Ltd v Te Runanga o Tuwharetoa ki Kawerau, above n 4.
provides for investigation and penalties where consent conditions are not met. Mr Wanoa says the Trust is currently working through this process with the OIO, with a live official complaint it has made against Ingleby. Māori interests are said to be integral to the benefit calculus for granting a consent. It is claimed that a switch to forestry use near wāhi tapu, ancestral lands or cultural landscapes raises a different risk profile, and bypassing disclosure/reassessment frustrates safeguards.
(c)With regard to the Treaty/Te Tiriti, the current claim is said not to be a free-standing action based on the Treaty, but rather one based on treaty principles and tikanga. Some reliance appears to occur on what is said to be the cultural evidence of Mr Perich here. Reference is also made to ss 6(e) and 8 of the RMA, and to what are claimed to be the findings in Smith v Fonterra that tikanga may inform the existence and scope of duties and remedies. This, it is said, must support the application of treaty principles in private law. It is claimed too that where Parliament builds Treaty/Te Tiriti aligned sections into the statutory scheme, courts are to apply these in adjudicating disputes, even between private litigants, both through interpretation and relief.
(d)As to the claims in nuisance, the Trust’s case is said to place in issue interferences with public and Māori public rights to cultural maintenance, health, safety, comfort and convenience (with reference again to Mr Perich’s evidence), and to unimpeded use of public Māori Native Reserves in a maintained state, via foreseeable off-site effects of the defendants’ forestry operations. In relation to private nuisance, there is said to be a substantial and unreasonable interference with the use and enjoyment of the Trust’s land, associated taonga and culture due to physical invasion (sediment/slash), loss of amenity, and material interference with customary use and cultural values. A quia timet injunction is said to be orthodox where there is a real and imminent risk of substantial harm, and damages would be an inadequate remedy. The pleaded effects of terrain, erosion-susceptibility and hydrological pathways, wilding-pine spread risk, and foreseeable mobilisation of
woody debris during high-rainfall events, are precisely the kinds of circumstances where quia timet relief may be appropriate. The defendant’s reliance on Mr Creese’s affidavit and a council inspection to say that there is no nuisance or that this risk is speculation simply invites the Court to resolve contested facts on the papers.
[25] Mr Wanoa confirms that the TWKG Trust opposes security for costs and stay. He notes that the Trust is applying for civil legal aid to prosecute its claim, and he argues that imposing a security requirement now would unjustly stifle their access to justice. He contends that security is not ordered where it would effectively bar a genuine, tenable claim, and he notes too that Parliament has limited costs exposure for aided person except in exceptional circumstances. He argues ordering up-front security while legal aid is pending would undermine that scheme and unjustly obstruct what is said to be a meritorious case.
Should the various claims be struck out?
[26] I consider that, although it is not appropriate to fully strike-out the Trust’s statement of claim here, a number of the claims and grounds advanced fail to disclose a reasonably arguable cause of action and accordingly must be struck out. Although strike-out is generally based solely on the pleadings, much of the particulars of the Trust’s claims have instead been set out in Mr Wanoa’s submissions. Given strike-out is to occur sparingly and in only the clearest of cases, I consider it appropriate to factor in the contents of the submissions to determine whether there is a tenable claim for each cause of action.
[27] It is abundantly clear that the claim under the Conservation Act does not disclose a reasonably arguable cause of action. No specific provision is referred to in the pleadings. Instead, there is simply vague reference to “needed assessments, processes and safeguards required” under the Act. I also do not consider that, rather than striking out this cause of action, any direction could be made for the Trust to amend its pleadings and provide further particulars. As noted by Mr Cameron, only one of the three titles that make up the Katoa Station is subject to the Conservation Act, due to it adjoining the Taurangakautuku River, and this requires a marginal strip
to be reserved from sale.8 The maps appended to Mr Creese’s affidavit setting out the areas of Katoa Station to be planted with pine clearly demonstrate that the 20 metre marginal strip along the river will not be planted. Therefore, there does not seem any basis to claim a breach of the Conservation Act. Accordingly, this cause of action is struck out.
[28] I also do not consider that a valid claim is disclosed in the fourth and fifth causes of actions, relating to Te Tiriti and the Treaty of Waitangi. First, despite Mr Wanoa’s submissions seeking to reframe the pleadings as simply relating to Treaty principles and tikanga, these causes of action appear to claim breaches of Te Tiriti and the Treaty in and of themselves, with only a vague reference to “fundamental breaches of said principles of Te Tiriti” or the Treaty. No reference is made under those causes of action to tikanga. I note also that tikanga is an entirely separate concept to the Treaty principles, with Mr Wanoa’s reliance on Smith v Fonterra appearing to be misplaced. Furthermore, I agree with Mr Cameron that Te Tiriti, the Treaty and the Treaty principles relate to the relationship between the Crown and Māori, rather than individual or corporate citizens and Māori.9 Since Ingleby falls into the latter camp, there is no valid claim here. I therefore determine that the fourth and fifth causes of action are also to be struck out.
[29] With respect to the claims under the RMA, I am of the view that any available recourse is with the Environment Court, rather than this Court. I agree too that there can be no breach of s 5, given it is a purpose provision assisting in interpreting the scope of the powers and duties under the Act, rather than providing for any such duty itself.10 Sections 6, 7 and 8 also do not apply here, as they concern persons exercising functions and powers under the RMA, which does not include Ingleby. There may be a valid claim under s 17 of the RMA, as even if an activity is permitted under a plan or policy, there remains a duty to avoid, remedy or mitigate adverse effects.11 However, s 17(2) makes clear that the duty is not itself enforceable against any person,
8 Conservation Act 1987, s 24 and pt 4A.
9 Carter Holt Harvey Ltd, above n 4, at [31] citing New Zealand Maori Council v Attorney-General
[1987] 1 NZLR 641.
10 See Legislation Design and Advisory Committee “Designing purpose provisions and statements of principle” (last updated 15 January 2025).
11 Aitchison v Walmsley [2016] NZEnvC 13.
nor is anyone liable to another for a breach. Instead, the Environment Court can make an enforcement order or issue an abatement notice under pt 12 of the RMA.12 Accordingly, I do not consider this Court has the jurisdiction to consider the Trust’s claim under that provision. The pleadings also refer to s 43 of the RMA. This provides the Governor-General with the power to make national environmental standards, and therefore does not apply here. No other provisions of the RMA are referred to in the pleadings. While Mr Wanoa did refer to ss 9, 15, and 314–319 of the RMA in his submissions, I note first, that he does not particularise exactly how ss 9 and 15 are breached, and secondly, that ss 314–319 concern orders that can be made by the Environment Court. I also do not consider there is any valid claim of failure to consult here, given the findings in Carter Holt Harvey Ltd. Accordingly, in my view, this cause of action should also be struck out.
[30] As to the claims by the TWKG Trust under the OIA, I agree with Mr Cameron that the pleadings are broad and speculative, with no specific provisions referred to. There is instead the same vague reference to a failure to undertake proper consultation with Māori, tangata whenua, the Trust and appropriate experts, and a failure to comply with “all other needed assessments, processes and safeguards required under the OIA”. Some further details have been offered however, in Mr Wanoa’s submissions, with it alleged there has been non-compliance due to Ingleby failing to disclose to, or seek a variation from, the OIO, given the consent received was for pastoral farming, not for forestry. While this raises the prospect that the pleadings might be amended to provide further particulars, I note there does not appear to be any means for a private actor to bring a claim against another for a breach of the OIA. Rather, the OIO can take enforcement measures against a party in breach of the Act.13 Such a process is said to already be underway, with the Trust having complained to the OIO. I therefore do not consider this cause of action can be repleaded so as to be reasonably arguable here. The appropriate recourse is with the separate process underway. This cause of action is thus also to be struck out.
[31] This leaves the sixth and seventh causes of action of public and private nuisance to be addressed. As with the other causes of action, the pleadings in the
12 RMA, s 17(3).
13 Overseas Investment Act 2005, subpt 5.
statement of claim are rather vague, referring to the same failure to properly consult or comply with needed assessments, processes and safeguards.
Public nuisance
[32]As to the public nuisance cause of action, Todd on Torts makes clear that:
To a large extent [this] tort has been superseded by specific statutory measures aimed at conduct that poses a threat to public health or safety, and an expanded tort of negligence.
and also that:
While few cases come before the courts, it has been invoked in the fight against climate change … .
[citations omitted]14
[33] Later, in considering the question of “Who can sue?” (other than the Attorney- General who always has standing to sue for an injunction to restrain a public nuisance) the authors of Todd on Torts went on to say:
An individual citizen [like perhaps TWKG Trust here] can bring an action only if some “special” or “particular” damage over and above that suffered by the public generally has been suffered.
[citations omitted]15
And, as R v Rimmington has authoritatively noted, public nuisance should affect the community or a section of the public, rather than simply individuals.16
[34] The statement of claim here has not made apparent what section of the public may be affected, nor what public rights may be interfered with. It does refer however to the fact the Reserve acts as a safe habitat for a wide range of flora and fauna said to be found nowhere else in the East Coast District and Region. The Reserve is also said to be of importance and significance to Ngāti Porou and hapū, iwi, whānau and kaitiaki in the locality. Mr Wanoa’s submissions also refer to cultural maintenance, health, safety, comfort, convenience and unimpeded use of Māori Native Reserves.
14 Todd on Torts 9th edition, Stephen Todd et al, Thomas Reuters at 9.3.1.
15 Todd on Torts at 9.3.3(2).
16 R v Rimmington [2005] UKHL 63, [2006] 1 AC 459 at [47].
Therefore, it is possible there may be a tenable claim in respect of public nuisance here, although further particulars will need to be provided as to the ‘public’ affected, whether that be the local community, local Māori, Ngāti Porou and/or other iwi/hapū, or even the wider region, and the alleged harm suffered or likely. Further particulars should also be provided as to what public rights are said to be interfered with. As I see it, the TWKG Trust must more clearly specify the connection between the forestry activities and alleged harm to public rights. But overall, and by a relatively fine margin, at this point Ingleby’s strike-out application related to this public nuisance cause of action, fails.
Private nuisance
[35] I turn now to the private nuisance cause of action. In my view, but again only by a relatively fine margin, I consider there to be a possibly tenable claim in respect of private nuisance too at this point. The afforestation is said to make the Reserve and its whenua vulnerable to landslips, erosion, sedimentation, water depletion, the spread of wilding pines, damage to native flora and fauna, and destruction or desecration of wāhi tapu including burial sites and traditional pathways. Mr Wanoa’s submissions refer to unreasonable interference with the use and enjoyment of land and associated taonga, due to risks of physical invasion via sediment/slash, loss of amenity, and material interference with customary use and cultural values.
[36] As I see it, essentially what the TWKG Trust seeks here is a mandatory quia timet injunction. A quia timet injunction is granted to restrain conduct which, if allowed to proceed, would almost certainly result in the claimant plaintiff suffering substantial damage.17
[37]And, as to a mandatory quia timet injunction, Todd on Torts notes:
A mandatory quia timet injunction is more burdensome than the prohibitory (or negative) form, and different considerations apply. In Redland Bricks Ltd v Morris the House of Lords identified the following principles to guide the exercise of the court’s discretion.18
17 See Todd on Torts at 9.2.9(b).
18 Redland Bricks Ltd v Morris [1970] AC 652 (HL) at 665-666; and see Taylor v Auto Trade Supply Ltd [1972] NZLR 102 (SC) at 121.
(i)A mandatory injunction can be granted only where the plaintiff shows a very strong probability on the facts that grave damage will accrue to him or her in the future.19
(ii)It must be shown that damages will not be a sufficient or adequate remedy if such damage does happen.
(iii)The cost to the defendant of doing the work required to prevent or lessen the likelihood of a future apprehended wrong is an element to be taken into account where the defendant has acted reasonably, though in the event wrongly.
(iv)If, in the exercise of its discretion, the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to express the injunction in very clear and specific terms so that the defendant knows exactly what has to be done and can give proper instructions to contractors.20
[38] The real potential of substantial interference with and damage to a plaintiff’s land must be established, a major task for TWKG here. Nevertheless, while further particulars and a properly amended pleading to fully inform Ingleby will be required, in my view, there remains a sufficient basis at this point to preclude strike-out of this cause of action. Although I accept that there is a high bar for such a quia timet injunction, I consider that whether that threshold is met is an issue for hearing, not for strike-out.
Should the proceeding be stayed pending security for costs?
[39] In my view, it is appropriate here for security for costs to be paid by the TWKG Trust. There is no evidence before the Court as to the financial position of the Trust. While a plaintiff opposing an application for security for costs is not required to disclose their financial position, failure to do so invites the Court to infer that it will not be in a position to meet any costs orders that may be made.21 It has previously been found that where a person has obtained a grant of legal aid, it can be presumed that this indicates an inability to pay legal costs.22 Although the Trust has not yet obtained legal aid, it has a live application, and accordingly I consider this to be
19 In Grocott v Ayson [1975] 2 NZLR 586 (SC) at 588, Cooke J said it would be a mistake to elevate these words “into an indispensable test”.
20 In Greenfield v Rodney County Council HC Auckland CP2762/88 12 December 1990 the High Court withheld a mandatory injunction because it was “not in a position to give sufficiently precise directions as to the work necessary to stabilise” the plaintiff’s land (at 20).
21 Monnery v Parson [2021] NZHC 2854 at [51]–[52].
22 Amev Life Assurance Co Ltd v Dixon-McIver [1993] 1 NZLR 733 (HC) at 738; Apatu v Apatu HC Napier CIV-2010-441-195, 19 December 2011 at [7].
sufficient evidence of impecuniosity. I do not accept Mr Wanoa’s submissions that ordering security for costs will necessarily undermine the legal aid scheme. The ability to make such orders where a plaintiff is legally aided is preserved by s 116 of the Legal Services Act 2011, although I accept the liability of aided persons for costs is limited by s 45 of that Act.
[40] In terms of whether security for costs is just in all the circumstances of the present case, while of course making the order may negatively impact the ability of the TWKG Trust to pursue its claim, no evidence has been provided to support an argument that it would effectively prevent the Trust from doing so. On the current pleadings and evidence the merits of the claim might be seen to be relatively weak. This also weighs in favour of granting security for costs here. There also does not appear to be any delay on the part of Ingleby. Although TWKG’s application for legal aid is obviously relevant, I consider that, in the event the application is successful, the Court can exercise its inherent jurisdiction to review the order and make any appropriate variations, or even set it aside, given this would amount to a material change in circumstances.23
[41] With respect to the quantum of security for costs to be ordered, I do not consider the sum of $50,000 sought by Ingleby is reasonable here. As outlined above, the claim will now be limited to one in nuisance, and so the earlier estimation of a five-day hearing is no longer accurate. As a broad estimate, the substantive proceeding might be heard in one or two days. Accordingly, I estimate scale costs to be in the realm of $25,000–$35,000. Noting the legal aid application, which if successful may result in limited liability for costs, I consider security of $20,000 to be appropriate.
[42] A stay of the proceeding, in my view, is appropriate here and an order will follow, this stay not to be lifted until security for costs in the sum of $20,000 is paid by the plaintiff. Further directions as to amendments to the TWKG Trust’s statement of claim and further particulars of the nuisance claims are also to be made.
23 See Cargill NZ Ltd v Palmerston Wool Co Ltd (1997) 11 PRNZ 52 (HC); and Driver v Radio New Zealand Ltd [2020] NZHC 2903 at [8].
Interim injunction application
[43] Ingleby’s applications for strike-out, security for costs, and stay have been largely successful here. Nevertheless, the TWKG Trust’s public and private nuisance claims in its sixth and seventh causes of action have survived, subject to appropriate amendment and the provision of further particulars.
[44] I will turn now to consider the Trust’s application for an interim injunction and preservation orders.
Legal principles
[45]The principles of interim injunctions are well-established:24
(a)there must be a serious question to be tried, with the plaintiff’s claim having at least “a tenable basis upon which it might be able to succeed at trial”;
(b)the balance of convenience must favour the grant of the injunction, with the Court to assess the impact on the parties from either granting or refusing relief; and
(c)finally, an assessment of the overall justice of the position is required as a check.
[46] The serious question to be tried needs to extend to the claimed substantive relief underpinning the need for an interim injunction.25 The assessment of the balance of convenience and where the overall justice lies is to be undertaken by reference to a wide range of non-exhaustive criteria, including the adequacy of damages, preservation of the status quo, the uncompensable disadvantages to either party, and the relative strengths of their cases.26
[47] Alongside the present injunction application, Mr Wanoa, for the Trust, also seeks preservation of property orders under r 7.55 of the HCR. Rule 7.55(1) provides that a Judge may at any stage in a proceeding make orders, subject to any conditions
24 American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL); and Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 140 (CA).
25 Maniapoto v Maniapoto Māori Trust Board [2022] NZHC 455 at [43].
26 Roman Catholic Bishop of the Diocese of Auckland v Boynton [2018] NZHC 2636 at [15] citing Wellington International Airport Ltd v Air New Zealand Ltd HC Wellington CIV-2007-485-1756, 30 July 2008 at [4].
specified by the Judge, for the detention, custody or preservation of any property. Such an order facilitates the interlocutory preservation of property so that claims are not rendered nugatory prior to substantive hearing. It is necessary to demonstrate a claim to an interest in the property.27
TWKH Trust’s submissions
[48] In terms of the preservation of property orders, Mr Wanoa submits the property involved in the litigation here is the Katoa Station, the Reserve and other affected whenua, and that these are all capable of being preserved. He refers to the decision in Jones v Bassett, where the Court said that, while not strictly an interim injunction, a preservation order aims to prevent the change of property for a period to allow clarity on the raised concerns, and accordingly could be used in relation to the proceedings in that case.28 Mr Wanoa argues r 7.55 is not confined to applications with proprietary title, with nothing in the rule requiring applicants to prove ownership.
[49] Mr Wanoa goes on to contend that there is a serious question to be tried, namely compliance with all NES-CF permitted activity conditions and any preserved, more- stringent plan controls, as well as whether these are effective at preventing the potential and actual damage claimed. He also refers to a continuing statutory duty to avoid, remedy or mitigate adverse effects, public and private nuisance, and to comply with the overseas investment consent framework, where land-use has materially changed from the represented pastoral rationale to commercial forestry. He argues these are merits questions suited to evidence, not threshold vetoes. In terms of the Council’s inspection report, he says a “GDC snapshot” is not full legal compliance, as the findings that there was good and meaningful afforestation practices being undertaken in accordance with the NES-CF were just an observational note on that day, rather than a binding determination of strict compliance with every NES-CF condition. He suggests Ingleby have only just begun their afforestation, and they already have breaches on their record.
27 Helicarr Helicopters Ltd v Watts (1992) 6 PRNZ 61 (HC).
28 Jones v Bassett [2023] NZHC 2926.
[50] In Mr Wanoa’s submission, damages are inadequate here as the harms at stake include irreversible environmental effects and tikanga-grounded cultural injury to taonga and customary use, which are not readily compensable in money. He notes there is no personal financial and economic gain in any sense for the Trust or its members. He endeavours to argue that there would be no disadvantage to Ingleby in the granting of an injunction and preservation order in terms of compensation, as the position sought cannot cause any material damage whilst the substantive proceeding is waiting to be determined. Mr Wanoa further says that the general principle of preserving the status quo favours the Trust here, as the order sought is simply for Ingleby to maintain the pastoral status quo of their whenua at Katoa Station. He observes that if the orders are not made, Ingleby will be able to proceed with PTP causing irreparable damage.
[51] The balance of convenience, he says, favours the Trust, with the risk of an injustice being high should the injunction application fail. Mr Wanoa claims that in this event, not only would the Trust suffer, but there would be great harm to their culture and mana and other local whenua kaitiaki.
Ingleby’s submissions
[52] As to the preservation orders sought, Mr Cameron notes that orders such as these require a proprietary interest in the underlying property sought to be reserved or restrained from disposal. He maintains that the TWKG Trust does not have an appropriate proprietary interest here, and so no relief of that nature can be granted.
[53] Mr Cameron says, largely for the reasons set out in support of Ingleby’s strike- out application, there is simply no serious question to be tried, with the Trust failing to establish tenable combinations of resolution of issues of facts and law on which it may be able to succeed at trial. He also argues that, in any event, the interim relief sought was unlikely to be available to the plaintiff, particularly in respect of the first to fifth causes of action, which could only be declaratory in nature. Declaratory relief, he noted, was unavailable under the Declaratory Judgments Act 1908 anyhow, as well as under the Court’s inherent jurisdiction, where it would require the Court to deal with mixed questions of fact and law. He went on to note too, the high threshold for
granting quia timet injunctions, which are sought in respect of claims in public and private nuisance. He claims too there is insufficient evidence here to satisfy the Court that there is any real prospect of success at trial, in relation to both the risk of significance damage, and/or imminent danger of infringement.
[54] As to issues over the balance of probabilities here, Mr Cameron notes Mr Creese has given evidence as to the potential prejudice that the defendants would face if interim relief were to be granted. These include potentially significant financial consequences due to interference with the ability to register the forest within the Emissions Trading Scheme (ETS). He refers also to the Bill currently before Parliament that seeks to alter what land use classes are eligible for registration within the ETS, and says the risk, if the relief sought is granted, is that Ingleby may be unable to register the forest, at a potential loss of up to $7.3 million in forgone income. In addition, Mr Cameron notes the undertaking as to damages filed by the Trust is not supported by any financial information as to its value. He notes too that it is made by a nominal plaintiff and in the absence of any particulars as to its trustees. It has been made too in circumstances where any security for costs has been opposed due to the Trust seeking legal aid. He argues any undertaking as to damages must be supported by sufficient information to enable the Court to assess the worth of the undertaking, as the undertaking must be able to be readily enforced if called upon. The failure to provide supporting evidence as to its undertaking, he maintains, is fatal to the relief sought here.
[55] In terms of the overall justice of the position, Mr Cameron submits the balance of convenience favours Ingleby’s position. He suggests that the relief sought would go beyond what could be obtained at trial, thereby improving the Trust’s position rather than preserving the status quo. He also points to what he says is the Trust’s delay and acquiescence here, with it pivoting from an urgent hearing to a more relaxed timetable to allow it to file further evidence. The Trust had been informed too that tree planting had recommenced at Katoa Station. In the meantime, no such evidence was ever served on Ingleby, with the planting programme having been all but completed by the time of hearing on 10 September 2025. Mr Cameron submits that if a plaintiff stands by while the act complained of is still taking place, and is aware their rights are being infringed, interim relief should be refused. The delay in bringing the
present applications and in prosecuting them, he maintains, without proper explanation, ought to be disentitling conduct weighing against the grant of interim relief.
Analysis
[56] I agree with Mr Cameron that the preservation orders sought by the TWKG Trust cannot be made here. Although the wording of r 7.55 does not expressly require a proprietary interest, the authorities have made clear that preservation orders are to be used where there is a dispute over ownership of the property in question. Although the TWKG Trust has said that Katoa Station historically was part of the whenua that made up the land within the Reserve, it has not sought to allege that it has any proprietary interest in Katoa Station. Accordingly, preservation orders cannot be made here.
[57] I also do not consider that any interim injunction should be granted here. As canvassed above (although it is not currently properly pleaded), I consider there is a possible question to be tried in relation to nuisance, particularly private nuisance. Although this is future nuisance, in my view there remains the possibility of a tenable claim that the pine tree plantation might risk interference with the Trust’s enjoyment and use of its whenua, namely the TNR Reserve. Mr Wanoa’s affidavit of 28 May 2025 sets out evidence of possible negative environmental effects of PTP, including soil degradation and erosion, contamination through herbicides and pesticides, water system disruption, invasion of wilding pines, biodiversity loss, increased pest habitat, and elevated fire risk. I do acknowledge however, that the Trust’s prospects of success are limited particularly on the current pleadings and evidence, and noting too the evidence of Mr Creese which indicates no planting will be undertaken in high erosion risk areas, and the low risk in the circumstances of this case of a wilding pine spread. What is sought here I note is also a (mandatory) quia timet injunction, in other words an injunction to prevent threatened or apprehended infringement of a legal or equitable right. The courts have made clear they are cautious to grant such injunctions. Relevant factors are to include the risk of imminent danger of an infringement, and the risk of
substantial damage, alongside other factors to be weighed in assessing whether the Court should exercise its discretion.29
[58] In terms of where the balance of convenience lies, I consider this plainly favours Ingleby here. I do accept however that damages are unlikely to be an adequate remedy for the contended harm if it were to eventuate. Much of the claimed future impacts to the TNR Reserve may well be irreversible if they were to occur. The TWKG Trust has failed to establish however what prejudice it will suffer in the time between now and when any substantive claim will be heard, given the pine trees have only just been planted, and so the risks from slash, wilding pine, and/or erosion are unlikely to eventuate in the intervening period. TWKG contends that establishment and operational phases, including spraying, roading and culverts, sediment and slash management, riparian maintenance and wilding risk responses are all ongoing, but it provides no evidence of this. In contrast, Ingleby has indicated that any delays to its afforestation may result in it no longer being eligible to be registered under the emissions trading scheme, given a bill is currently progressing through Parliament that will restrict eligibility for registration. Its evidence is that it is set to lose millions of dollars in potential earnings if the delay prevents its registration. While of course there is a degree of uncertainty as to this claimed loss, given it is contingent on legislation being passed, I consider it is still an appreciable risk.
[59] I also accept that there has been an element of delay on the part of TWKG here, with the Trust earlier withdrawing from pursuit of an urgent hearing and instead seeking an extended timetable. In fact, it also sought an adjournment of the hearing of this matter. This is despite the fact it had been informed by Ingleby that the current planting programme was set to end on 31 August 2025. I accept Mr Cameron’s submission that this delay must weigh against the granting of an interim injunction here.
[60] Additionally, while it is true in general that granting interim relief will usually preserve a present position or status quo, I do not consider a failure to grant the relief
29 Robertson v Duthie Steel Casement Co Ltd [1927] NZLR 826 (SC) at 827; and Hooper v Rogers
[1975] 1 Ch 43 at 50
sought would result in a substantial, let alone irreversible, change to the present position between now and when the substantive application will be heard.
[61] And, in terms of the arguments around TWKG’s undertaking as to damages, I accept that the lack of information to support the undertaking is of some relevance in the assessment of the balance of convenience.30
[62] In summary, I agree that the overall justice here favours Ingleby, given, as I have outlined above, that while there is a possibly tenable claim, the prospects are relatively weak, and the balance of convenience weighs in favour of Ingleby. When the present claim relates to a possibility of contended future harm against the TNR Reserve, and other matters, such as the accepted position that Council inspections have determined there are no serious issues with the PTP afforestation programme currently, and on the present evidence before the Court, delay to the programme caused by an injunction could result in over $7 million in loss to Ingleby, are real factors here, I do not consider the Court should exercise its discretion to grant an interim injunction.
[63] The TWKG Trust’s application for an interim injunction and preservation orders is dismissed.
Result
[64]In conclusion, for all the reasons I have outlined above:
(a)Ingleby’s strike-out application succeeds in part relating to TWKG Trust’s first to fifth causes of action. An order is made striking out the TWKG Trust’s first to fifth causes of action in its statement of claim.
(b)Ingleby’s strike-out application in relation to the public and private nuisance sixth and seventh causes of action is dismissed, on the basis that an amended statement of claim removing the struck-out causes of action and providing proper amended pleadings and further particulars of the sixth and seventh causes of action as noted below is provided.
30 See Park Lane Builds Ltd v Shiva Eco Homes Ltd [2022] NZHC 1438 at [58]; and Rotorway Ltd v Sports & Education Corporation Ltd [2024] NZHC 2941 at [39].
(c)The TWKG Trust is directed to file and serve within 20 working days of this judgment the amended statement of claim as noted at [64](b) above.
(d)Ingleby’s security for costs and stay applications succeed. Orders are made first, that within 30 working days of the date of this judgment the TWKG Trust is to provide security for costs of $20,000 by paying that sum into Court and, secondly, that this proceeding is stayed pursuant to r 5.45(3)(b) of the High Court Rules until this sum is paid.
(e)The TWKG Trust’s application for an interim injunction fails and it is dismissed.
Costs
[65] As to costs, no detailed submissions on costs were made to me at the hearing. Costs are reserved. The parties are urged to liaise to settle any costs matters that arise between themselves. Failing this, memoranda may be filed (five pages maximum) and any issue of costs will be determined on the papers.
Gendall J
Solicitors:
Nolans Lawyers, Gisborne for Respondents cc: W Wanoa, Te Araroa for Plaintiffs
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