Walsh v Gough
[2025] NZHC 3471
•14 November 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2024-488-122
[2025] NZHC 3471
UNDER Section 343 of the Property Law Act 2007 and Part 19 of the High Court Rules 2016 BETWEEN
MICHAEL EDWARD WALSH
Applicant
AND
BARRY JOSEPH GOUGH
Respondent
Hearing: 3 July 2025 Appearances:
R C Mark for the Applicant Respondent in person
Judgment:
14 November 2025
JUDGMENT OF GAULT J
This judgment was delivered by me on 14 November 2025 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Parties / Solicitors:
Mr R C Mark, Solicitor, Kerikeri The Respondent
WALSH v GOUGH [2025] NZHC 3471 [14 November 2025]
Introduction
[1] Mr Walsh applies for an order under s 343(g) of the Property Law Act 2007 (the PLA) authorising the Registrar of the High Court at Whangārei to sign the documents required to effect a subdivision of a property near Kaeo in Northland ordered by this Court on 28 November 2018.1 Mr Walsh seeks this further order since his co-owner, Mr Gough, has refused to sign the documents. Mr Gough maintains that an alternative subdivision proposal is preferable.
[2] Mr Gough did not file a notice of opposition as directed but he did file an affidavit setting out the essence of his argument that the subdivision ordered should not proceed and that there should be an alternative fairer subdivision. Mr Gough also did not file written submissions as directed but he appeared in person at the hearing to oppose the application.
Factual background
[3] The background narrative was set out in the judgment of the Court of Appeal dated 24 August 2022 declining Mr Gough’s application for an extension of time to appeal this Court’s judgment of 28 November 2018:2
[6] Mr Gough and Mr Walsh purchased the property in 1984. They contributed equally to the purchase price and towards the vendor mortgage. In 1989 Mr Gough and Mr Walsh agreed they would split the property into equal halves, with Mr Walsh occupying the “front” half of the property (Lot 1) and Mr Gough the “back” half of the property (Lot 2).
[7] Mr Gough and Mr Walsh developed their respective allotments. Mr Gough built a home, barns and other structures on Lot 2. Mr Walsh built barns and other structures on Lot 1.
[8] In 2011 or 2012, Mr Gough and Mr Walsh agreed to subdivide the property in accordance with their earlier agreement so as to ensure they would each receive freehold properties each comprising approximately 80 ha. Mr Walsh applied for a resource consent for the proposed subdivision, which was granted on 29 March 2012.
[9] In 2014, Mr Walsh instructed a surveyor to survey the property. Mr Gough however, changed his mind about the agreement. He formed the view Mr Walsh was getting the better half of the property. At about this time,
1 Walsh v Gough [2018] NZHC 3104, (2018) 20 NZCPR 212.
2 Gough v Walsh [2022] NZCA 395.
Top Energy Ltd placed pylons through part of the property. Top Energy offered compensation for the pylon easements.
[10] The relationship between Mr Gough and Mr Walsh continued to deteriorate. Mr Walsh ultimately applied to the High Court for a subdivision order under s 339 of the Property Law Act 2007. That application came before Palmer J in the High Court at Whangārei on 28 November 2018.
[11] Mr Gough failed to take steps to defend the subdivision application, which was granted following a formal proof hearing. The orders subdividing the property were along the boundary lines previously agreed to by Mr Gough and Mr Walsh. The Judge directed that the costs of the subdivision be paid equally by the parties. Mr Gough was also ordered to pay costs to Mr Walsh on a scale 2B basis.3
[12] It later transpired that the survey of the property carried out as a pre- requisite to subdivision revealed more land than had been anticipated. As a consequence, Mr Gough’s allotment increased to 85.5 ha and Mr Walsh’s allotment increased to 94.3 ha.
Applicable principles
[4] Section 343(g) of the PLA provides that the Court making an order dividing property under s 339(1) may, in addition, make a further order providing for, or requiring, any other matters or steps the court considers necessary or desirable as a consequence of the making of the order under s 339(1).
[5] Although such a further order under s 343(g) was not sought when this Court made the original order dividing property under s 339(1), and despite the time elapsed since the Court’s earlier order, I consider the Court may make a further order authorising the Registrar to sign documents required to effect the subdivision, in appropriate circumstances. That fits with the broad discretionary regime.4
Discussion
[6] All steps necessary to complete the subdivision have been carried out by Mr Walsh. However, Mr Gough has failed or refused to sign the documents required to give effect to the subdivision and the issuing of two new separate titles.
3 Walsh v Gough [2018] NZHC 3104, (2018) 20 NZCPR 212 at [28].
4 Bayly v Hicks [2012] NZCA 589, [2013] 2 NZLR 401.
[7] There is no doubt that Mr Walsh has incurred significant expense to subdivide the property and will suffer hardship if the subdivision is not able to be effected and the new titles issued.
[8] The issue is essentially whether there is a good reason for Mr Gough’s refusal to sign the documents implementing the Court ordered subdivision.
[9] In effect, Mr Gough claims that he will suffer hardship if he only receives his separate title in accordance with the High Court judgment dated 28 November 2018. Mr Gough raises two main concerns with the subdivision ordered by this Court:
(a)it is not a fair split; and
(b)access to Mr Gough’s Lot 2.
[10] In relation to a fair split, Mr Gough’s concern is that, contrary to the equal split envisaged, the subdivision allocates 94.3 ha to Mr Walsh and only 85.5 ha to Mr Gough. Further, Mr Gough says that Mr Walsh’s Lot 1 is worth $55,000 more than his Lot 2. This is based on a 2019 valuation which valued Lot 1 at $335,000 and Lot 2 at $280,000.
[11] In relation to access issues, it appears to be common ground that the only vehicle access to either lot is from the north. As for access to Lot 2, Mr Gough said that there had been overland access but Mr Walsh has cut out that access in the subdivision plan and so the only remaining access is along the Taita creek. He said there were two old bridges over the creek but only one has been replaced (by him) and at the other crossing point there is now only a ford rather than a bridge.5 Mr Gough said the crossing is dangerous – with three cars having been washed down the creek – and he cannot cross when the creek is flooded. He relies on the affidavit of a surveyor/engineer, Mr Thurlow, dated 9 May 2022, which was filed in the Court of Appeal.
5 It appears this bridge may be on another neighbour’s property. Mr Gough also said that Mr Walsh had asked him and the other neighbour using the creek access to move the access away from where he was living.
[12] Given these concerns, Mr Gough asks the Court to order an alternative subdivision using an alternative plan that was included in Mr Thurlow’s affidavit. This plan shows a different boundary between Lot 1 and Lot 2 and includes the overland access.
[13] Mr Gough also claimed that evidence given in the earlier case was inaccurate or untruthful. He considers that he has been reasonable throughout. In addition, he raised further matters about his relationship with Mr Walsh at the hearing that were not in evidence and which I cannot address. In essence, Mr Gough would like to appeal against the earlier decision of this Court.
[14] Mr Walsh says that Mr Gough’s concerns were all addressed when he applied for leave to appeal in 2022. Having reviewed the Court of Appeal judgment and Mr Gough’s affidavit in this proceeding, I am satisfied that Mr Gough’s main concerns have been addressed and that he is essentially seeking to relitigate them. The Court of Appeal considered the merits of his proposed appeal were weak.6 In particular, the Court of Appeal recorded that Mr Gough appeared to accept there should be an order for equal distribution of the property, but wished to provide evidence and make submissions as to the appropriate boundaries and easements of the subdivision.7 That coincides with Mr Gough’s substantive concerns raised in this proceeding that the split is not fair and he has issues with access.
[15] In relation to Mr Gough’s fair split concern, I make the following points. First, Palmer J’s order of 28 November 2018 in this Court stated that the property “must be divided between the current co-owners, Mr Michael Walsh and Mr Barry Gough, as described in exhibit MW-10 of Mr Walsh’s affidavit of 14 November 2018”.8
6 Gough v Walsh [2022] NZCA 395 at [37].
7 At [26].
8 Walsh v Gough [2018] NZHC 3104, (2018) 20 NZCPR 212 at [28].
[16] As Duffy J said in a judgment dated 14 April 2022 on Mr Walsh’s application to discharge a stay pending appeal (which had been granted by Palmer J on 8 October 2019):9
Exhibit MW-10 is a topographical representation of the land. It shows boundary lines, including the boundary line which runs through the middle and effects the subdivision. This boundary follows the natural contours of the land. The northern area is labelled “Lot 1”. Below that label it states “80 ha” and “M.E. Walsh”. The southern area is labelled “Lot 2” followed by “80 ha” and “B.J. Gough”. There is a note in the right hand corner stating that “[a]reas and measurements are subject to survey”.
[17] Secondly, the 2019 valuation Mr Gough relies on was filed in the High Court and referred to by Palmer J when granting Mr Gough a stay pending appeal.10
[18] Thirdly, accepting that the discrepancy identified by the subsequent survey was not something that could have been addressed before Palmer J in 2018, it was a live issue before the Court of Appeal in 2022. That is clear from paragraph [12] of the Court’ of Appeal’s judgment, which is set out at [3] above.
[19] Fourthly, the Court of Appeal declined to grant Mr Gough leave to appeal out of time.
[20] Fifthly, I am satisfied that the ultimate discrepancy in the size of the allotments simply reflects the more precise calculation following the survey – with each lot being bigger than the 80 ha expected – and does not warrant revisiting the subdivision ordered. As Mr Mark submitted, for Mr Walsh, it can be seen that the boundary line between the two lots on the plan MW-10 goes along a ridge line (at least until it turns north on the west side of Lot 1). The subsequent survey does not change the boundary shown in that plan and ordered by the High Court; it merely calculates the precise size of each lot. I also note that Mr Thurlow’s 2022 affidavit envisaged an arrangement whereby Mr Walsh could pay for the extra land as an alternative to moving the boundary. In any event, it would not be appropriate to change the boundaries ordered
9 Gough v Walsh HC Whangārei, CIV2018-488-76, 8 October 2019 (Minute of Palmer J);
Walsh v Gough [2022] NZHC 798 at [6].
10 Gough v Walsh HC Whangārei, CIV2018-488-76, 8 October 2019 (Minute of Palmer J) at [4](b). On 14 April 2022, on Mr Walsh’s application to discharge the stay, Duffy J made an unless order in relation to (inter alia) filing an appeal, failing which the stay would be lifted: Walsh v Gough [2022] NZHC 798.
by this Court in 2018 to reflect the alternative plan identified by Mr Thurlow, which he understood was prepared at the instruction of Mr Gough.
[21] As to Mr Gough’s access concerns, I first address the overland access. Mr Mark said he was not aware of changes to the overland access since the High Court decision and resource consent. I understand from Mr Thurlow’s 2022 affidavit that the 2012 resource consent expired in 2017, and a further application was made in 2017 and granted in 2018.11 It appears from Palmer J’s judgment,12 and Mr Thurlow’s affidavit, that their understanding was that the overland access was removed because Mr Gough agreed in 2012 that he did not require a particular right of way. Whether or not that is correct, I accept this was the reason why the overland access was omitted from the 2018 subdivision plan. I also expect that – as a co-owner – Mr Gough would need to have been consulted in the resource consent process. With leave to appeal to the Court of Appeal having been declined in 2022, this is not a matter that can be revisited by me now.
[22] In relation to access along Taita creek, this appears to be access on a public “paper road” and then over another neighbour’s property, rather than access over Lot 1. Mr Gough’s concerns about this access were addressed in Mr Thurlow’s 2022 affidavit filed in the Court of Appeal. Mr Thurlow’s affidavit focused on the need to prove the access to the west of Taita creek was within the road reserve, issues with access to the other neighbour’s land and whether the bridge was legal, rather than danger with the ford. As Mr Mark submitted, this is the same access that existed previously. In any event, with leave to appeal to the Court of Appeal having been declined, this too is not a matter that can be revisited by me in this proceeding.
[23] Finally, I observe that if it were to transpire Mr Gough’s land is landlocked – that is, he has no reasonable access to it – he may apply to the Court under pt 6, sub-pt 3 of the PLA for an order granting reasonable access to his landlocked land.13 The Court has a discretionary power to vest any other piece of land in the owner of the landlocked land or to grant an easement.
11 I note that I have not seen the conditions of the subdivision consent.
12 Walsh v Gough [2018] NZHC 3104, (2018) 20 NZCPR 212 at [13].
13 Sections 326 to 331.
[24] Accordingly, there is no good reason for Mr Gough’s refusal to sign the documents implementing the Court ordered subdivision. Even if there were, as I explained to Mr Gough, I could not in this proceeding order any alternative subdivision.
[25] I conclude it is appropriate to make an order as sought authorising the Registrar to sign documents required to effect the Court ordered subdivision.
Result
[26] I make an order pursuant to s 343(g) of the Property Law Act 2007 authorising the Registrar of the High Court at Whangārei to sign the documents required to effect the subdivision ordered by the High Court on 28 November 2018. The documents required are set out in para 2(c) of the originating application.
Costs
[27] I urge the parties to take a reasonable and proportionate approach to costs. The costs principles applicable under the High Court Rules 2016 are settled. They provide guidance to the parties to assist in the quantification of costs in a cost-effective way.
[28] If costs cannot be agreed, memoranda (not exceeding three pages) may be filed within 20 working days, and I will determine costs on the papers.
Gault J
0
4
1