Waimumu Road Limited v Moase Holdings Limited

[2020] NZHC 1258

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-798

[2020] NZHC 1258

IN THE MATTER

of sections 319 and 320 of the Property Law Act 2007

BETWEEN

WAIMUMU ROAD LIMITED

Applicant

AND

MOASE HOLDINGS LIMITED

Respondent

On the papers:
Judgment:	8 June 2020

JUDGMENT OF HINTON J

This judgment was delivered by me on 8 June 2020 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:

Skinners Law, Auckland

WAIMUMU ROAD LTD v MOASE HOLDINGS LTD [2020] NZHC 1258 [8 June 2020]

[1]                 Waimumu Road Ltd applies on a Pickwick basis for orders under s 320 of the Property Law Act 2007 allowing it to access property owned by the respondent to enable Waimumu to undertake civil engineering works on and under the respondent’s land. These orders are effectively ancillary to orders already made in Waimumu’s favour by Gault J by Minute dated 20 April 2020.

Background

[2]                 Since August 2018, Waimumu has been engaged in the process of subdividing and developing its property at 105 Waimumu Road, Massey. On 15 November 2018, Waimumu and the respondent company Moase Holdings, which owns the adjoining property at 10 Lilburn Crescent, entered into an agreement whereby Moase Holdings agreed, inter alia:

[…] to allow such access to consultants, workmen and other such agents of Waimumu Road Limited as is required to complete applications referred to herein and undertake such works as are required to satisfy the terms of the Resource Consent. Such work to be completed in a proper and working [sic] like manner during business hours of 8 am to 5 pm, with 24 hours notice to be given of any access required or work to be undertaken.

[3]                 These works involve, in summary, Waimumu’s contractors creating a storm water connection between 105 Waimumu Road and the public storm water network that runs under Lilburn Crescent by installing pipes under 10 Lilburn Crescent.

[4]                 Between June and November 2019, the relationship between Waimumu and Mr Gordon Moase, the sole director and shareholder of Moase Holdings, deteriorated. On 6 December 2019, Waimumu filed proceedings in this Court for an order requiring specific performance by Moase Holdings of its obligations under the agreement. On 26 March 2020, the parties filed a joint memorandum consenting to the making of those orders and, as noted, on 20 April 2020 Gault J made that order.

[5]                 On 1 and 4 May 2020, Waimauri sent Mr Moase emails requesting that he propose a start date for access. On 8 May 2020, Waimauri’s solicitors emailed Mr Moase requesting that he respond urgently to the previous emails and warning that Waimauri could bring contempt proceedings if Moase Holdings did not comply with Gault J’s orders. On 21 and 22 May 2020, Waimauri served copies of a notice under

s 319 Property Law Act 2007 on Moase Holdings at its registered office and personally on Moase Holding’s tenant at 10 Lilburn Crescent (Mr Moase not being resident there). Waimumu’s notice stated that, inter alia:

The nature of the proposed work is to carry out the Storm Water Works on the Property in accordance with the sealed order for summary judgment for specific performance of the agreement for consent to the development and subdivision of the property at 105 Waimumu Road, Massey dated 20 April 2020. A copy of the Sealed Order and Agreement are attached […]

The Storm Water Works are to be undertaken as per the construction programme attached […]

The Storm Water Works are estimated to take 45 days as per the Programme. The hours of work will be from 7:30am to 6:00pm Monday to Saturday.

The applicant will make good of any damage caused by the entry onto or over the neighbouring land or the reimbursement of the owner and, if applicable, the occupier […]

The applicant requires the respondent, Moase Holdings Limited and the tenants of the Property to refrain from interfering with the applicant and its contractors in order to carry out the storm water works.

The measures proposed to be taken to maintain adequate access to the property at 10 Lilburn Place are set out in the Programme attached.

[6]                 Mr Moase first replied to any of this on the evening of 27 May 2020, when he telephoned Waimumu’s solicitors. He was told firmly that Waimumu required all correspondence to be in writing. He emailed the solicitors on 2 June 2020 asking them to advise when Waimumu proposed to begin work and saying he had been unable to understand the proposed work programme. In a reply email on 3 June 2020, Waimumu’s solicitors advised Mr Moase that their instructions were to continue with the application under the Property Law Act, given Mr Moase’s intransigence.

[7]                 Mr Doe, one of Waimumu’s directors, deposes that Waimumu urgently requires access to 10 Lilburn Crescent to allow the storm water works to be completed, as the subdivision of 105 Waimumu Road cannot be completed until that is done. In this connection, he deposes “practically all” of the proposed subdivided titles are already sold, the completion date is within three months, and Waimumu is at risk of significant financial losses if the project is not completed on time.

[8]                 On 2 June 2020, Waimumu filed this originating application, seeking orders under s 320 of the Property Law Act 2007 in terms of its s 319 notices of 21 and 22 May 2020, and also a declaration that Moase Holdings is in contempt of court and a sequestration order in respect of 10 Lilburn Crescent.

[9]                 Other than the telephone call and email referred to at [6], Mr Moase has taken no steps in respect of Waimumu’s application.

Discussion

[10]              The Court’s power to make an order allowing entry onto neighbouring land under s 320 of the Property Law Act 2007 of which Waimumu seeks to avail itself has been described as a broad power to grant relief where doing so is considered “just and equitable” in the circumstances, with the Judge “empowered to make pragmatic but principled decisions in circumstances … where neighbours are unable to resolve differences that have arisen.”1

[11]              It has now been two months since Waimumu asked Mr Moase, as Moase Holding’s sole director, to nominate a start date for the works. He took nearly a month to reply to that correspondence in any form. When he did, he failed to take up Waimumu’s offer to nominate a starting date, instead claiming he could not understand the works that had been proposed. I do not think that is a fair complaint. I have reviewed the terms of the work programme attached to and incorporated by reference into Waimumu’s s 319 notice. The timings of and timeframes for the various activities involved are clear. Moreover, on the basis of the materials provided, it appears the proposed work represents the least possible intrusion on Moase Holding’s property practicable in the circumstances. Access to the dwelling on the property, albeit with some occasional restrictions, will be able to be maintained along an adjoining driveway on the same accessway during the period of the works.

[12]              In circumstances in which specific performance of an agreement has been ordered by consent, and one party now apparently seeks to resile from its obligations under that agreement and under the consent orders, I consider justice requires that the

1      Guo v Bourke [2017] NZCA 609, (2017) 19 NZCPR 168 (CA) at [30].

other party be given an effective remedy. I consider this particularly necessary here because Waimumu will face a considerable financial consequence if it is not able to give good title to the purchasers of homes in the subdivision by the specified completion date, which is drawing close.

[13]              My only occasion for pause in granting relief in terms of Waimumu’s s 319 notice is that the hours of work therein specified (7.30 am to 6.00 pm) are greater than those set out in the agreement (of 8.00 am to 5.00 pm). While this means that the order presently sought cannot be described as wholly ancillary to the orders made by Gault J on 20 April 2020, I am nonetheless satisfied that relief should issue in the terms requested by Waimumu. Because of the delays occasioned by Mr Moase’s intransigence, I am satisfied it is necessary to allow Waimumu a greater period of time each day to complete the necessary works than was needed in November 2018.

[14]              For these reasons, Waimumu having given Moase Holdings the necessary notice,2 it is just and equitable to grant relief under s 320 in the terms set out in Waimumu’s notice as reproduced in part above. For these same reasons, I am also satisfied I can deal with this application on the papers on a Pickwick basis.3

[15]              Granting relief in these terms provides Waimumu with adequate relief. For this reason, and also because it is clear that Moase Holdings has been recalcitrant in complying with the consent orders but less clear this has risen to the level of deliberately contemuous conduct, I do not consider it appropriate to grant the “drastic and blunt”4 remedy offered by a sequestration order.

Result

[16]              Waimumu’s application succeeds in part. I make orders in terms of the s 319 notices issued by Waimumu on 19 May 2020, a copy of which notice is attached.

2      Property Law Act 2007, s 319.

3      High Court Rules 2016, rr 7.46 and 19.10; Pickwick International (GB) Ltd v Multiple Sound Distributors Ltd [1972] 1 WLR 1213, [1972] 3 All ER 384 (EWCA), applied Lala v Preliminary Proceedings Committee (1993) 7 PRNZ 101 (HC) at 105-106.

4      Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union [1983] NZLR 612 (CA) at 617.

[17]              Waimumu is presumably entitled to costs on this application on a 2B basis. If the parties are unable to agree costs, leave is reserved to the applicant to file and serve a memorandum within ten working days of the date of this judgment, with the respondent having ten working days to reply. Memoranda are not to exceed four pages, not including intituling pages and supporting materials such as invoices.

Hinton J

IN THE MAKER

AMDTO:

of sections 319 and 320 of th Property Law Act 2007

gtOASE HOLDINGS LIMIND hafing its registered office at Tax and Trust Professionals Ltd, 52 Swanson Road, Hendenon

TUE TENAWS at 10 Lilbum Crescent, Massey

office e Lockhan 0            9-4 Galatos St eel, Newton Aueklar+d ends to apply to the High Court for the following ordem:

a.An order under ss 319 and 320 of the Property Law Act 2007 the Aet") to enter the neighbouring and at 10 Li bum Crescent, Massey [the Pzopertyg to undertake the

Property n acco/danoe with the sealed order to svmmaiy udgment for specific perforn›ar+ce of the agreement for consent to the dev@pment and subdivisian of It+e property at 105 Waimumu Road. Maseey dated 20 Aq il 2020. A copy of the Sealed OnJer and Aqreemen are attached and marked and respectively