Thornley v Ford - [2021] NZHC 611

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-398

[2021] NZHC 611

BETWEEN
PETER ERIC THORNLEY and ROLIEN YOLANDA TREMAIN
First Plaintiff

JAMES RICHARD RUITERMAN
Second Plaintiff

JEREMY EDWARD HEWITT
Third Plaintiff

AND

GRAEME REYNOLD FORD and NGAIRE DAWN FORD and STEPHEN REYNOLD FORD

Defendants

Hearing: 17 March 2021

Appearances:

A E Simkiss for the Plaintiffs D G Hayes for the Defendants

Judgment:

24 March 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 24 March 2021 at 12:30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

THORNLEY and TREMAIN v FORD & OTHERS [2021] NZHC 611 [24 March 2021]

Introduction

[1] In 1979, three adjoining landowners at Bombay, south of Auckland, entered into an agreement to create a water easement. The purpose of the easement was to provide a water supply from one property to the other two properties.

[2] The parties to this proceeding are successors in titles to those properties. The plaintiffs are the owners of two properties that now benefit from the easement. The defendants were, at the time this proceeding was commenced, and until recently, the owners of the property burdened by the easement. The proceeding has a trial set down for three days, to commence on 8 June 2021.

[3]The plaintiffs have applied (informally) for the following orders and directions:

(a)Granting leave to file an amended statement of claim;

(b)Granting leave to join a second defendant (Papa Putaiao Ltd);

(c)Discovery against all defendants in relation to a new issue;

(d)Variation to the existing timetable orders.

[4] The plaintiffs say these orders and directions are necessary owing to a recent transfer of the burdened land from the defendants to Papa Putaiao Ltd (PPL).

Background

Parties to this proceeding

[5] The defendants, Graeme Reynold Ford, Ngaire Dawn Ford and Stephen Reynold Ford, were, until recently, the registered owners of a parcel of land at 59 Chamberlain Road, Bombay. They formerly operated the Footbridge Wedding and Events Centre from this site. Their title is burdened with a registered easement entered into in December 1979.

[6] The plaintiffs hold two parcels of land which benefit from that easement. The first plaintiffs, Peter Eric Thornley and Rolien Yolanda Tremain, are the registered owners of 33 Chamberlain Road. The second plaintiff, James Richard Ruiterman, is the registered owner of a parcel of land in Chamberlain Road. A third parcel of land also benefits from the easement. This land is owned by a person who was formerly the third plaintiff in this proceeding. That plaintiff discontinued against the defendants in March 2020.

Easement

[7] At the time the easement was created, the registered owner of the defendants’ land was Bridge City Lands Ltd (Bridge City Lands). The land now owned by the first plaintiffs was owned by Alister and Vicki Palmer (the Palmers) and part of the land now owned by the second plaintiff was owned by Donald Law. Bridge City Lands, the…

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.

Keep reading for free

Create a free CaseChat account to read Thornley v Ford and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NZHC 611
Decision Date: 24 March 2021

CaseChat Overview and Summary

In Thornley v Ford, the plaintiffs sought leave to amend their statement of claim to include an allegation of fraud against Papa Putaiao Ltd (PPL), a new defendant. The defendants opposed the amendment, but the plaintiffs argued that the amendment was necessary to address the real points in dispute between the parties. The court accepted the plaintiffs' submissions that the amendment would enable one of the real controversies between the parties to be determined at trial and that the proposed claim had substantial merit. The court also found that the defendants' concerns about prejudice were of their own making and that any prejudice to them would be minimal. The court granted the plaintiffs leave to amend their claim to include an allegation of land transfer fraud against PPL. The court also ordered that PPL be joined as the second defendant and made amended timetable directions. The defendants were ordered to pay the plaintiffs' costs of $2,987.50.

Orders