Wratt v Harnett HC Auckland M404/1706/00

[2001] NZHC 258

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M404/1706/00

BETWEEN GRAHAM COLY WRATT
Plaintiff

AND IAN KEITH HARNETT
First Defendant

AND PAUL JOHN SMITH
Second Defendant

AND DAVID JOHN SMITH
Third Defendant

AND TERENCE WILLIAM GARDINER AND JOSEPHINE CLARE WHALE Fourth Defendants

AND VICKI ROBYN STOREY
Fifth Defendants

Date of Hearing: 5 April 2001

Counsel: J Cox (for applicant)
W Akel & C Sheehy (for respondents)

Judgment: 5 April 2001

JUDGMENT OF HAMMOND J

INTRODUCTION

[1] This is an application for a Writ of Arrest against Professor Harnett, pursuant to R608 of the High Court Rules 1992, on the grounds that he has failed to comply with an interim injunction granted by Glazebrook J in this Court.

THE BACKGROUND

[2] This dispute arises out of access to Mr Wratt’s property on Great Barrier Island.

[3] In 1982, Professor Harnett purchased property on the Island as a retreat, and also as an outlet for his continuing interest in ecological matters.

[4] Mr Wratt and his then partner, Mr Charles Prenter, also acquired land on the Island. The difficulty for them was that the Wratt/Prenter land was landlocked. There  is a paper road, which will likely be formed at some point of time, and which would solve the access problems to Mr Wratt’s property. However, on any view of it, that enterprise is still some years away.

[5] In 1983, Professor Harnett agreed that Mr Prenter and Mr Wratt could have informal access through his property, which could be terminated on fair notice, in return for carrying out track maintenance.

[6] Apparently, that informal access arrangement worked relatively well for some time.

[7] By the late 1980s, Mr Prenter and Mr Wratt had separated. They divided their block of land into two separate lots.

[8] In 1994, Professor Harnett constructed a track which was referred to by the parties before me as the “northern boundary track”. Both he and Mr Prenter began to use that track.

[9] Professor Harnett’s use of his property has apparently been intermittent. He spends periods of time in Japan. For him, his property was a retreat. He became increasingly concerned that the usage of his property by pig shooters; marijuana farmers; four-wheel drive vehicles; motor-cross riders; the cutting of firewood and suchlike, had begun to impact detrimentally on the property.

[10] Following an incident in March 2000, the nature of which I need not traverse here, Professor Harnett gave Mr Wratt nine months notice that he was withdrawing permission for Mr Wratt to have informal access over his property. This was a matter of great significance for Mr Wratt, because he is seriously disabled. He has one leg shorter than the other, which has caused chronic arthritis in his ankle joints, hip and lower back. He needs to be able to use an ATV to reach his property.

[11] In July 2000, Mr Wratt commenced proceedings against Professor Harnett (and certain other persons who have an interest in the outcome, because there are a number of properties with access difficulties in this area). Mr Wratt sought orders pursuant to s 129B of the Property Law Act 1952 attaching and making appurtenant to his land, a right of way easement (in whatever terms appeared reasonable) over Mr Harnett’s land, and that of other defendants.

[12] Then, on 13 October 2000, Mr Wratt filed an application for an interim injunction. The parties then came to an interim arrangement whereby Professor Harnett agreed that Mr Wratt could have access over his property, pending the resolution of the substantive issues between the parties, but without prejudice to the parties rights. That interim access agreement did not specify over which track Mr Wratt was to have access from Blackwell Road, up and across Professor Harnett’s property, to that of his own.

[13] Mr Wratt then filed a second interlocutory application for an injunction on 22 November 2000. That application was heard and substantially compromised, by consent.

[14] In the result, in her judgment of 13 December 2000, Glazebrook J made eleven orders:

“(i) Professor Harnett will provide vehicular access for Mr Wratt and his partner Mr Dunstan over the central track until the hearing of the substantive matter;

(ii) Professor Harnett will provide access to guests of Mr Wratt across the central track but any such guests must come on foot and shall not use vehicles;

(iii) Mr Hartman cannot use the track or come on to Professor Harnett’s property for any reason and, for the avoidance of doubt, does not come under [ii] above;

(iv) Gates on the central track (and the boundary track for the access provided for in [x] must be locked and unlocked after each one-way passage;

(v) Access is only for access to and from Mr Wratt’s property from Blackwell Drive and there is no access to the remainder of Professor Harnett’s property;

(vi) The central track is not to be used for commercial purposes;

(vii) Professor Harnett shall be held immune from legal liability for accidents occurring as a result of access taken over Professor Harnett’s land either over the central track or the boundary track;

(viii) There will be a payment of $25.00 per vehicle that is to use the central track by Mr Wratt to Professor Harnett to be paid within 30 days from the date of this order;

(ix) Any damage caused to the central track by driving in wet weather is to be repaired by Mr Wratt;

(x) Access is to be given by Professor Harnett over the boundary track for one week at a time that is to be agreed between the parties, for the purpose of transportation of Mr Wratt’s equipment from his garage;

(xi) Mr Wratt is to be provided with a pipe. He will then provide the labour to fill in the culvert on the boundary track. Timing is to be agreed between the parties.”

[15] It is important to appreciate that at that time, counsel and the Judge thought there were only two tracks under consideration. Both would have offered access across Professor Harnett’s property, to Mr Wratt. One was the boundary track, and the other was one near the centre of the property of Professor Harnett, referred to as the “central track”. In point of fact, part of the way along its length, the central track branched: it did go straight ahead to Mr Smith’s boundary, but a branch angled left in a loop or link arm, to join up with the boundary track. Professor Harnett’s now contention is that it was the former which was being referred to; Mr Wratt’s the latter.

[16] The point which has now arisen would have been resolved if a plan or some other written expression had been utilised at the time of the December orders. I do not say that in a sense which is in anywise critical of counsel or the Court — this is precisely one of those situations in which, with the benefit of hindsight, there were potential ambiguities, and ambiguities which at that, could be exploited by one or other of the parties.

[17] In any event, from the granting of the injunction through to 10 February 2001, Mr Wratt used the central track in the sense as he understood it to be — that is running up the centre of Professor Harnett’s property, and then angling off to the north-west (the “loop”) to join what had been the upper reaches of the boundary track, and thence to his property. Professor Harnett was in Japan. When he returned he was concerned about the way in which his property had been accessed by all sorts of persons. It was also said frankly, from the Bar, that Professor Harnett is concerned to protect the disputed area for all sorts of practical reasons to do with his own activity. So he simply blocked the track in a quite unambiguous way. He took up a culvert; he erected blocking fences; he replanted trees, and there were earthworks.

[18] The effect of this activity was to force Mr Wratt to change his usage to the upper reaches of the central track, as Professor Harnett claimed it ought to be understood. That is, by going up in a straight line all the way to the Smith’s property, then across it (including going through chain barriers) and thence to Mr Wratt’s property. Mr Wratt says this is a much more difficult route, and winter is coming.

[19] Moreover, there was no doubt in Mr Wratt’s mind that this was a deliberate evasion and obstruction on Professor Harnett’s part; that what had been canvassed as a settlement was his preferred route; and that Professor Harnett is dishonourably and inappropriately endeavouring to change the arrangements which had led to the December injunctions. And so, a Writ of Arrest was applied for.

[20] I add here, for completeness, that the case cried out for a resolution. Potter J earlier this week devoted considerable energy to seeking to resolve this matter, in a settlement conference. In the event, the case did not settle. I must now determine the application according to law.

THE PRINCIPLES APPLICABLE TO A WRIT OF ARREST

[21] The law in this area is very well settled, and was common ground between counsel viz,

•   The terms of the order which is sought to be enforced must be clear and unambiguous.

•   The defendant must have had proper notice of those terms.

•   The terms must have been broken by the defaulting party.

•   The allegations that there has been a breach of a court order of this character are of a very serious nature, and must be established beyond a reasonable doubt.

•   The extreme remedy of a Writ of Arrest should ordinarily be reserved for cases where the failure to obey the court has been wilful and inexcusable.

[22] See, New Zealand Guardian Trust Co Ltd v Parker (1992) 6 PRNZ 30; Burselem Holdings Ltd v GB & JB Bockett Ltd (1989) 4 PRNZ 616; Soljan v Spencer [1984) 1 NZLR 618; and Summer & Winter Fuels v Pickens (1994) PRNZ 621.

RESOLUTION

[23] The issue before me this morning was plainly whether the injunction had been framed with sufficient particularity, and whether the state of Professor Harnett’s knowledge was such in relation to that particularity, that it can be said, beyond a reasonable doubt, that he has wilfully breached order (i), of the orders made by Glazebrook J.

[24] The evidence which was relied upon by Mr Cox this morning was that in para. 29 of an affidavit sworn on 1 December 2000 — that is before Glazebrook J’s decision — Professor Harnett stated:

“The original central track that was used followed the northern boundary of that part of my property which fronted onto Blackwell Drive. The track then went through the middle part of my ‘second’ block (CT272/125). Some time, while the property was a deceased estate, someone constructed a loop track towards the north-eastern corner to connect with the blocks which Mr Wratt brought.”

[25] And, at p46 of the same affidavit, Professor Harnett stated, “I repeat Mr Wratt and Mr Dunstan can continue using the central track on a without prejudice basis to everyone’s rights pending the substantive hearing”.

[26] Mr Cox said that these statements had to be understood in a context that the only tracks which Mr Wratt had ever used to gain vehicular access were the central track branching across the loop track and onto the boundary track itself, from 1994. And, vehicular access by Mr Wratt had never been gained direct towards the Smith house.

[27] There has to be a very distinct suspicion that Professor Harnett did choose to make a reconfiguration of the central track, for his own purposes, after the December 2000 decision. But that is not the test. The test is that it must be shown beyond reasonable doubt that Professor Harnett absolutely knew what was being referred to in the December 2000 order meant something else. It is entirely sufficient to dispose of this application that I do not think that can be said to be so on what has been put before me. The second statement in the affidavit I have referred to, is simply descriptive, in a general sense. The first is also generally descriptive of what had happened. I do not think that I can fairly and appropriately make an inference from that single sentence, for the purposes of a Writ of Arrest, that Professor Harnett definitively had the requisite knowledge. That conclusion is to some extent reinforced by the various loose descriptions of the track by Mr Wratt in earlier affidavits, through which Mr Akel also took me this morning.

CONSEQUENCES

[28] Mr Cox urged on me that if, as I propose to do, I should dismiss the present application, that I should treat what is presently before me as an application for a variation of the injunction. The difficulty with that, is that the suggestion was first made only in the submissions handed up this morning. No advance notice had been given to Mr Akel’s interests. And it is obvious from the failure of the settlement conference earlier this week that the parties have not been able to hammer out a compromise. Further, I do not accept that I have everything before me that would enable me properly to adjudicate now on a variation application.

[29] In dismissing the application, I direct that Mr Wratt file and serve, within fourteen days, if such an application is to be made, an application for variation of the injunction, along with any affidavits in support. Any notice of opposition and affidavits in support thereof are to be filed within ten days thereafter. That application should be listed for hearing at the first opportunity. In giving those directions, I am mindful that this process would at least enable a variation application to be determined prior to the full onset of winter.

COSTS

[30] There will be no order for costs. Mr Wratt is legally aided. Even if I have jurisdiction, I would not, in the circumstances of this matter, be prepared to make an order for solicitor and client costs against him, as Mr Akel suggested. The case is one in which costs should lie where they fall.

Application dismissed.
No order for costs.