Victoria Lane Remuera Limited v White

[2021] NZHC 3197

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000744

[2021] NZHC 3197

IN THE MATTER

of an application under s 319 of the Property Law Act 2007

BETWEEN

VICTORIA LANE REMUERA LIMITED

Applicant

AND

HARRY ROBERT IVAN WHITE, CHRISTINE MORRIN WHITE and ANTHONY CLIVE SANDLANT

First Respondents

ELIZABETH MARY SELAK, ALLAN HARDLEY DICKINSON and SELAK TRUSTEES LIMITED

Second Respondents

ANTHONY FOX LAITY, ANTHONY ROGER HUMPHREY LAITY, GRAHAM ANDREW MACKENZIE, JUDITH

CATHERINE LAITY and VERYAN FAYE LAITY

Third Respondents

…/cont

Hearing:	On the papers
Judgment:	26 November 2021

FINAL JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie

On 26 November 2021 at 3.00 pm Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

Hornabrook Macdonald/J Donkin, Auckland Hesketh Henry/T Rainey, Auckland

VICTORIA LANE REMUERA LTD v WHITE [2021] NZHC 3197 [26 November 2021]

HUGH WILLIAM BAIRD LITCHFIELD and PAUL LEWIS MIDDLEMASS

Fourth Respondents

LINDA GHEN YOUNG
Fifth Respondent

ALASTAIR MACCORMICK, RAEWYN JOY MACCORMICK and JUDITH MARJORIE POTTER

Sixth Respondents

IRENE HESSEY HARGRAVE
Seventh Respondent

PENGUIN NOMINEES LIMITED
Eighth Respondent

WILLIAM JAMES MACKEY and
ELAINE MERLE YOLLAND-MACKEY
Ninth Respondents

WAYNE TREVOR DERRICK and NIGEL PHILLIP SMITH

Tenth Respondents

ROSEANNE PHILIPPA O’LOGHLEN MEO and CHRISTOPER DAVID GILL

Eleventh Respondents

FRANCIS HUGH WEBSTER
Twelfth Respondent

BEVERLY PHYLLIS GENTLES

Thirteenth Respondent

CYNTHIA ANGELA MCNICHOLL, DAVID JOHN ROSS and DEREK SINCLAIR FIRTH

Fourteenth Respondents

CURE KIDS
Fifteenth Respondent

BANK OF NEW ZEALAND

Sixteenth Respondent

/Contd…over

ERICA ALICE MOORE, PETER JAMES MOORE and WAYNE ROSS

STOLLERY
Seventeenth Respondents

GRAEME LOUIS COLLINSON and MARIA LUISA LUCIA COLLINSON

Eighteenth Respondents

WAVEFIT LIMITED
Nineteenth Respondent

REVAAH GOURMET LIMITED
Twentieth Respondent

AOTEAROA NEW ZEALAND INVESTMENT LIMITED
Twenty First Respondent

AS NO 1 LIMITED
Twenty Second Respondent

FEDERAL HOLDINGS LIMITED

Twenty Third Respondent

WENDY RUTH HAWKE
Twenty Fourth Respondent

ANTHONY KEENAN and SHAN LU
Twenty Fifth Respondents

ASB BANK LIMITED
Twenty Sixth Respondents

BED BATH N’TABLE NZ PTY LIMITED

Twenty Seventh Respondent

JONES FAMILY CHIROPRACTIC LIMITED

Twenty Eighth Respondent

NEW ZEALAND POST LIMITED
Twenty Ninth Respondent

EASTERN BAYS HOSPICE TRUST
Thirtieth Respondent

DENNIS MADDEN
Thirty First Respondent

[1]I refer to my interim judgments dated 27 August 2021 and 17 September 2021.

[2]                 I have received a joint memorandum from counsel for the applicant, the first respondents and the twenty first respondent. Annexed to that memorandum is a draft order and various annexures.

[3]                 The draft order applies only to the first, fourth to eighth, tenth, thirteenth, seventeenth to twenty second, twenty fourth, twenty sixth to twenty eighth and thirtieth respondents. Those respondents either opposed or took no steps.

[4]                 As noted in my interim judgment of 27 August 2021, the applicant obtained the consent of the other respondents to the proposed intrusion into their airspace. I do not know the terms on which those consents were given and the respondents who consented to the intrusion did not specifically consent to the proposed order. Thus I considered it inappropriate to extend the Court order to them.

[5]                 I am satisfied with the affidavit from Mr Thomas of Trade Guarantee + Surety Ltd, which company has agreed to provide a bond to the applicant to secure the applicant’s obligation to indemnify the named respondents. It appears that it will be able to meet its obligations if it is called upon to do so.

[6]                 I approve the proposed order annexed as Schedule 1 to the joint memorandum of 24 November 2021 and I make an order under s 320 of the Property Law Act 2007 permitting the applicant to enter and re-enter the airspace above the named respondents’ properties by operating a flat top crane, on the conditions set out in the proposed order.

[7]                 There is no issue as to costs between the applicant and the first and twenty first respondents. None of the other respondents named in the proposed order appeared at the hearing. Accordingly, it is not appropriate to reserve to them the right to seek costs.

Wylie J