Stewart v Milano International 2007 Limited

[2018] NZHC 2207

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1182

[2018] NZHC 2207

BETWEEN

KRISTINE MARY STEWART

First Plaintiff

JOSEPH MATTHEW BROWN
Second Plaintiff

AND

MILANO INTERNATIONAL 2007 LIMITED

First Defendant

EURO ASIA LABOUR BUILDING CONSTRUCTION NZ LIMITED

Second Defendant

Hearing:

24 August 2018

Counsel:

C Hollings for Plaintiffs

M Taylor for First Defendant

Judgment:

24 August 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 24 August 2018 at 5.00 pm, pursuant to Rule 11.5 of the High Court Rules.

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

Solicitors            Andrew Seton Law Limited, Auckland

Maria Taylor, Auckland

STEWART v MILANO INTERNATIONAL 2007 LIMITED [2018] NZHC 2207 [24 August 2018]

[1]                 I have before me an application by the plaintiff for injunctive relief in relation to alleged trespass and/or nuisance in respect of a shared driveway used by the plaintiffs and the first defendant. The first defendant has reached agreement with the plaintiffs for interim injunctive relief. The second defendant has taken no part in the proceedings.

[2] Having considered the plaintiffs’ submissions and the evidence filed, together with the consent memorandum of the plaintiff and the first defendants, I am satisfied that the orders agreed between the plaintiffs and the first defendant should be granted and in respect of both the first and second defendants. Those orders are stated at [5].

[3]                 To elaborate, I am satisfied that the plaintiffs have a seriously arguable case that use of their driveway by construction vehicles attending to works on the first defendant’s property, and the occupation of the shared driveway by those vehicles, is a trespass. I am also satisfied that the balance of convenience favours interim injunctive relief – the consent of the first defendant to such orders, together with the absence of any opposition from the second defendant, being the best evidence of that.

[4]                 I am also satisfied the second defendant should be subject to the orders, given the plaintiffs’ evidence that the second defendant owns or controls some of the allegedly trespassing vehicles. Finally, the orders to be granted impose a lesser restriction on the first and second defendant’s vehicles (the requirement for non-use by heavy vehicles over the shared driveway has been deleted). I am therefore satisfied that it is unnecessary to serve the second defendants with the proposed orders.

[5]Accordingly, I make the following orders, namely:

[a]An injunction pending further order of the Court prohibiting the first defendant and the second defendant and any other agents or invitees of the first or second defendants from entering onto and/or parking on and/or dumping any material and/or bringing heavy vehicles onto and/or otherwise trespassing over the plaintiffs’ property, including the shared driveway marked (A), for any purpose (other than accessing

section 19A) and including for the purpose of accessing sections 21 and 21A; and

[b]An injunction pending further order of the Court prohibiting the first defendant and second defendant and any other agents or invitees of the first or second defendant from parking on and/or dumping any material and/or otherwise obstructing the plaintiffs’ rights to pass and repass over parts (A) and/or (B) of the shared driveway and/or breaching the terms of the right of way, whether for the purpose of accessing sections 21 and 21A or otherwise.

[6]                 The parties have not reached agreement as to costs. Submissions are to be filed by the plaintiffs within five working days, by 31 August 2018, and by the first defendant within three working days thereafter, by 5 September 2018.

[7]                 I record for completeness, as I did in open Court, that I have a connection to Ms Hollings. She was my former High Court clerk and a person for whom I have recently given a professional reference. I am satisfied that this was not a sufficient reason to recuse myself, given the orders were sought by consent and/or by default. I propose, however, to refer the issue of costs to another Judge. Ms Hollings has advised indemnity costs will be sought so the ordinary rules do not apply. In these circumstances, while I do not consider it is presumptively necessary to recuse myself, I prefer to refer the matter of costs to another Judge.