Victoria Lane Remuera Limited v White

[2021] NZHC 2461

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000744

[2021] NZHC 2461

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:	17 September 2021

SECOND INTERIM JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 17 September 2021 at 5.00 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

VICTORIA LANE REMUERA LTD v WHITE [2021] NZHC 2461 [17 September 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]                 In my interim judgment issued on 27 August 2021, I directed the parties to submit a joint memorandum setting out a timetable for the filing and serving of such further evidence and materials as were required to address the various matters referred to in my judgment. I also indicated that if the parties could reach agreement on the terms of any order, they should file a further draft incorporating the proposed orders and conditions they considered appropriate for the Court’s consideration.

[2]                 In the event, I was advised by counsel for the parties that their respective clients had reached agreement. By joint memorandum received earlier this afternoon, the parties submitted a draft order and the conditions they suggested are appropriate to permit the entry into the air space above the Whites property and the air space above other properties proposed to be affected by the order.

[3]I regret that I am not satisfied with the draft order. I note the following:

(a)The proposed order encompasses all respondents to the application, even though only the first respondents opposed the application at the hearing. Counsel to the applicant advises that he considers this best ensures consistency in respect of all neighbouring properties.

As I noted in paras[26] and [50] of my interim judgment, Victoria Lane has reached agreement with a number of owners. I recorded that no order was required in respect of those properties and I do not share Victoria Lane’s counsel’s view. I do not know what arrangements have been reached with those owners who have consented. In particular, I do not know whether they have consented to an order in the terms proposed. I am prepared to make an order in respect of the Whites and in respect of those properties affected whose owners did not seek to participate in the proceedings. I am not prepared to go further, without confirmation from the owners of the properties who have reached agreement with Victoria Lane, that they accept the terms of the draft order.

(b)Counsel need to explain why the draft order proposes that the counter boom will enter and re-enter the air space above 6 Victoria Avenue (the Whites’ property) only – see cl 3. This conflicts with cl 4 and is inconsistent with the rest of the proposed draft.

(c)Clause 15 of the draft order requires that Victoria Lane, its employees, agents or contractors ensure that the crane works are undertaken in compliance with a site specific safety plan produced by CMP. A copy of that safety plan has been given to me and the Whites advise that their expert has looked at it and suggested various amendments. It should be annexed to and form part of the order.

(d)The Whites confirm that Victoria Lane’s insurance arrangements and the indemnity conditions contained in the draft order provide them with satisfactory cover in the event of any loss or damage being caused by the crane. In their view, a separate bond is no longer required.

The proposed order affects not just the Whites’ property but also other properties. Again, as I noted in my interim judgment at [55], any indemnity from Victoria Lane must be secured by a bond providing affected owners with an assurance that, in the event of damage, they will be indemnified for all losses suffered as a result. This requirement is particularly acute in the present case, where Victoria Lane has given no evidence as to its financial ability to meet its indemnity.

The Whites can waive that requirement for themselves but the Court is being asked to give its imprimatur to a trespass into the air space enjoyed by other neighbouring land owners. I am not prepared to permit Victoria Lane to enter into the air space of neighbouring properties, unless its indemnity is secured by a bond. I made that clear in my interim judgment and it is disappointing that this requirement has been ignored.

(e)I also require an explanation for cls 21 and 22 in the draft order. As it stands cl 21 (with its spelling error) is unsatisfactory. Why should the act or omission of one respondent affect the indemnity enjoyed by other respondents?

(f)Clause 24 is unsatisfactory. If a respondent wishes to sell his or her property the respondent should not be required to first seek the written consent of every other party.

(g)In my interim judgment, I indicated that any order should require that there is no lighting on the tower or on the boom of the crane except as required by relevant safety regulations. This requirement has also been ignored in the draft.

[4]                 In my interim judgment I recorded my view that Victoria Lane should not be permitted to externalise its costs. The Whites have waived any condition to this effect. Given that other respondents did not appear to seek compensation, I do not require a condition to this effect.

[5]                 For the reasons I have set out, I am not prepared to approve the draft order as presented.

Wylie J

Solicitors/counsel:

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