Mansfield v Bilkey [2016] NZHC 752 (21 April 2016)

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BETWEEN	OLIVIA MARIE MANSFIELD Plaintiff
AND	ALAN EDMOND BILKEY First Defendant ROBERT BRUCE DAVIDSON, ELIZABETH HARTE AND TIMOTHY WILLIAM JOHNSON Second Defendants JOHN BILKEY DAVIDSON, JACQUELINE ANN DAVIDSON AND CB TRUSTEES 5 LIMITED Third Defendants STEPHEN FREDERICK TAYLOR AND VLAW TRUSTEES (2015) LIMITED Fourth Defendants _{continued .../2}

Hearing:	18 April 2016
Appearances:	N Campbell QC and C Baker for Plaintiff G J Kohler QC for First, Second, Third, Fifth and Sixth Defendants E St John for Fourth Defendants
_Judgment:	_{21 April 2016}

This judgment is delivered by me on 21 April 2016 at 11.45 am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

[1] The parties own neighbouring properties in St Georges Bay Road, Parnell, Auckland. Access to these properties is by a single formed driveway. There is no other access.

[2] The plaintiff, Ms Mansfield, acquired title to the driveway on 18 December 2015. Four days later, she filed the present application for an interim injunction which would effectively prevent the defendants from driving down the driveway to their properties.

[3] The driveway is approximately 50 metres long and runs in an easterly direction from St Georges Bay Road. Although each of the defendants has the benefit of a registered right of way, Ms Mansfield claims that this is limited to a triangular section on the southern side of the driveway which tapers from the full width of 4.73 metres at the entrance off St Georges Bay Road to 1.31 metres at the eastern end where the properties are located. She claims that there is no right of way over the triangular section making up the northern side of the driveway. If Ms Mansfield is correct, then although the driveway is uniformly wide, it would be impossible for even a Smartcar to travel down its full length without trespassing on part of her land.

[4] Ian Walker, a surveyor engaged by Ms Mansfield, has prepared a plan showing the triangular section of the driveway allegedly subject to the right of way. This plan is attached to the judgment to aid understanding. Ms Mansfield claims that the right of way extends only over the triangular section shaded yellow on this plan, not the blue triangular section to the north of it. If the injunction is granted, Ms Mansfield proposes to paint a diagonal line down the driveway so that the defendants and their invitees can be clear about which part of the driveway they are permitted to use.

[5] Ms Mansfield no longer pursues her application for interim injunction against the fourth defendants, Mr Taylor and Vlaw Trustees Ltd. They are the trustees of the Interchange Trust which owns unit F at the north eastern end of the driveway. Mr Taylor has occupied unit F, which has a two car garage, for over 20 years. He and his invitees have always used the driveway for vehicular access.

[6] The other defendants are the owners of future development units 5 to 9. The subdivision of the land into these units was planned in 1990 and titles were issued in January 1994, long before Ms Mansfield bought her unit in 2003. However, the building work to erect dwellings on these units did not commence until late last year, shortly before she filed the present application. Ms Mansfield unsuccessfully opposed resource consent for the erection of these dwellings and the defendants claim that her present application is a further attempt by her to frustrate their development plans. Now that the application is confined to these defendants, the primary effect of an interim injunction would be to prevent trucks and contractors’ vehicles from reaching the building sites.

[7] The principles applicable to applications for interim injunction are well settled. Ultimately, the question is whether overall justice is best served by granting or refusing an interim injunction having regard to all relevant considerations. These are usually marshalled under two broad headings, being whether the plaintiff has shown a serious question to be tried and where the balance of convenience lies.¹The Court must balance the risk of injustice to the plaintiff by wrongly refusing to grant an interim injunction

against the risk of injustice to the defendant by wrongly granting it. As Somers J stated in Congoleum Corporation v Poly-Flor Products (NZ) Ltd:²

That involves a decision as to whether the granting of an injunction or its refusal is the course which, after the action itself has been tried and the issues between the parties determined, would best allow the adjustment of the rights of the parties in a way that accords with fairness and justice.

[8] Mr Campbell QC submits that the interim injunction should be granted because: (a) Ms Mansfield has an arguable case;

¹_{Klissers Farmhouse Bakeries Ltd v Harvest Bakers Ltd
[1985] NZCA 70; [1985] 2 NZLR 129 (CA).}

²Congoleum Corporation v Poly-Flor Products (NZ) Ltd [1979] NZCA 25; [1979] 2 NZLR 560 (CA) at 571.

(a) Ms Mansfield will suffer minimal damage if the injunction is refused and an award of damages can compensate for this;

(b) damages will not be an adequate remedy for the defendants because these cannot be calculated easily and Ms Mansfield has not demonstrated that she would be able pay any damages awarded;

(d) the status quo is that there is access to the defendants’ properties down the driveway and this should be preserved pending trial by declining the application for interim injunction; and

[10] Ms Mansfield’s claim will require careful consideration of historical deeds dating back to the late 19^thcentury interpreted in the light of expert evidence from surveyors. A brief summary is sufficient for present purposes.

[11] Prior to 1875, Reverend Robert Burrows owned allotment 83, section 1, Parish of Waitemata. This allotment incorporated all of the relevant land parcels. Reverend Burrows progressively sold parts of the land. By deed dated

25 February 1875, he conveyed part of the land, to the north of the driveway, to

Mr Lepine. On 21 May 1875, he conveyed land at the eastern end of the driveway, including all of the land presently owned by the defendants, to Rose Hunter. On

[12] On 20 October 1879, a number of parties, including Hunter, Nicholson, Lepine and Burrows, entered into deed 63007. This deed served a number of purposes. Ms Hunter conveyed the balance of her land to James Slator. Mr Nicholson conveyed part of his land to Mr Slator. Importantly, for present purposes, Hunter, Nicholson, Burrows and Lepine granted a right of way to Mr Slator providing access from St Georges Bay Road to his land. The right of way created by this conveyance is registered against Ms Mansfield’s title to the driveway and is recorded on the supplementary record sheet for the unit development. Ms Mansfield claims that this right of way passed partly over Mr Lepine’s land (the blue section shown on the plan), partly over Mr Nicholson’s land and partly over the driveway now owned by Ms Mansfield (the yellow section shown on the plan). This is the basis for Ms Mansfield’s claim that this right of way was never sufficient on its own to provide vehicular access over the Burrows’ land to the land now owned by the defendants.

[13] Deed 63007 conferred a right of way in favour of Mr Slator’s land but not Mr Nicholson’s land. This was corrected along with other errors in earlier conveyances by deed number 95844 dated 16 September 1885. The path of this right of way is the same as that created by Deed 63007 and is also shown as being partly over the Lepine land and partly over the Burrows’ land. The right of way created by this conveyance is also registered against the title to the driveway although not on the supplementary record sheet for the unit development.

[14] On the basis of these deeds, I accept that Ms Mansfield has an arguable case that the rights of way referred to in deeds 63007 and 95844 were only ever granted over part of the land retained by Reverend Burrows. Given that Ms Mansfield acquired title to the driveway from Burrows’ Heritage Trust Ltd, which in turn acquired it from the administrators of Reverend Burrows’ estate, she has an arguable case that the rights of way were only ever granted over part of the driveway.

Although the defendants contend that no part of these rights of way was ever over the Lepine land, Mr Kohler does not seriously challenge Mr Campbell’s submission that Ms Mansfield’s case is at least arguable.

27 March 1895, the Lepine land was sold by mortgagee sale to George Panter. The relevant deed records that the land was subject to the rights of way granted by deeds

63007 and 95844. Second, on 18 February 1899, Charlotte MacCurdy acquired the Lepine land from Mr Panter. By this time, Mr Slator had acquired Mr Nicholson’s land. Mr Slator joined in the deed recording the conveyance of the Lepine land from Panter to MacCurdy so as to release this land to Ms MacCurdy “forever freed from any rights of way if any now existing” over it. Ms Mansfield contends that this is a reference to the rights of way granted by deeds 63007 and 95844 over the Lepine land shown in blue on the attached plan. If Ms Mansfield’s claim is correct, there has been no right of way over the blue section of the driveway since 1899.

[16] If the rights of way were always partly over the Lepine land to the north (the blue section on the plan) and partly over the Burrows’ land to the south (the yellow section), it is not clear how title to the entire driveway was able to be passed to Ms Mansfield from the Burrows’ estate. Further, if Ms Mansfield’s claim is right, it would appear that she herself would have been trespassing to the extent that she and her invitees drove along the driveway to her unit from the time she acquired it in May 2003 until December 2015 when she acquired the driveway. Until then, her only right to use the driveway was the same as that relied on by the defendants and was based on the same right of way.

[17] Nevertheless, the dispute cannot be resolved on the basis of the evidence currently available. I conclude that Ms Mansfield has demonstrated that she has an arguable case that can only be determined at trial.

[18] A landowner whose title is not in issue is normally entitled to an injunction to restrain trespass, including an interim injunction.³However, that is not the situation here because Ms Mansfield’s claim is disputed. The Court therefore faces a dilemma. If the injunction is wrongly declined, Ms Mansfield’s interest in the land will be infringed until the matter is resolved at trial. By the same token, if the injunction is wrongly granted, the defendants’ interests in the land secured by the

registered right of way will be denied to them until trial. In these circumstances, the Court needs to evaluate these risks and consider whether an award of damages will adequately compensate the wronged party. The focus is on the limited period during which the interim injunction will remain in place. This is likely to be a comparatively short period; I am advised that the Court could hear the substantive proceeding as early as 30 May 2016 if the parties can be ready by then.

[19] Mr Campbell submits that if an interim injunction is refused but Ms Mansfield ultimately succeeds with her claim, the defendants will in the meantime have committed multiple acts of trespass over her land. He submits that she would be entitled to damages for that trespass including a reasonable rate of remuneration for the defendants’ unlawful use of her land and damages for interference with her privacy and quiet enjoyment. Mr Campbell submits that such damages cannot be calculated easily and damages are therefore not an adequate remedy for her.

[20] It is important to differentiate between interference with Ms Mansfield’s privacy and quiet enjoyment caused by the construction and that resulting from any unlawful use of the driveway, if that is ultimately proved. The evidence shows that the construction will continue whether or not the injunction is granted. However, if the injunction is granted, this is likely to cause increased loss of privacy and quiet enjoyment for Ms Mansfield because it will prolong the construction works, not stop them. Trucks and other vehicles will only be able to progress part of the way down the driveway. At a certain point, depending on the width of the particular vehicle, it

_{will have to stop to enable construction materials to be unloaded and
hand carted the}

³Patel and Ors v W H Smith (Eziot) Ltd & Anor [1987] 1 WLR 853 (CA) at 858 and 859.

rest of the way to the site. Some building elements may need to be constructed onsite rather than pre-cast or pre-fabricated offsite as currently planned. This will also delay the construction works and add significantly to the cost.

[21] I consider that the damages to which Ms Mansfield will be entitled if she is able to prove trespass for the limited period until trial are likely to be modest and are capable of being assessed without significant difficulty in accordance with well established principles. There is no suggestion that the defendants will be unable to meet such an award of damages if Ms Mansfield prevails at trial. This conclusion points strongly against the grant of an interim injunction because orders by way of interim injunction are not generally made if damages are an adequate remedy.

[22] Mr Kohler submits that damages will not be an adequate remedy for the defendants. While he acknowledges that the defendants should be able to calculate any additional construction costs accurately, the defendants will be exposed to any fall in the market as a result of delay and may also be delayed in moving into the units. He also submits that Ms Mansfield has failed to demonstrate that she would be able to meet any likely award of damages. Although the defendants raised this issue in their notice of opposition, Ms Mansfield did not address this issue in reply.

[23] I consider the defendants’ concerns are overstated. In his affidavit sworn on

29 January 2016, the developer, Mr Bilkey, forecast that construction of the first two units would be complete by the beginning of August 2016. He estimated that the increased costs caused by an interim injunction were likely to be in the vicinity of

$150,000. The likely additional costs must be much lower now given that the building works have continued uninterrupted since that affidavit was sworn.

[24] Ms Mansfield has owned her unit subject to a single mortgage to one of the major banks since May 2003. Although there is no evidence of the amount outstanding under this mortgage, it is likely that Ms Mansfield has sufficient equity in this property to meet any likely damages award. Further, Ms Mansfield now owns the driveway, an area comprising some 228 . There is no mortgage registered against this title.

[26] The conduct of a defendant can be an important factor when determining where the balance of convenience lies in a particular case. An example is where a defendant has been fully aware of the plaintiff ’s rights but has nonetheless chosen to proceed with the allegedly unlawful conduct in breach of those rights. This is sometimes referred to as a defendant acting with “eyes wide open”. The rationale behind this consideration was explained by Chilwell J in New Zealand Farmers Co-

‘We have done it; it is irreversible; it has been done at great expense. We are now sorry. To make us undo the prima facie wrong to the plaintiff will cost

us dearly’. A similar argument was advanced in the Gallaher case. It failed.

The reason is simply this. A defendant cannot create his own inconvenience and then have it taken into account in balancing the scales of inconvenience

[27] Mr Campbell submits that the defendants acted with their “eyes wide open” and have therefore brought any inconvenience that may result through the grant of an injunction on themselves. He refers to Mr Bilkey’s statement in his affidavit that he was told by the real estate agent prior to purchasing that there was a dispute about whether the right of way permitted access to the sites by vehicles. However, Mr Bilkey says that he was not aware at that time of Ms Mansfield’s claim that part of the right of way had been surrendered.

[28] Mr Campbell next refers to a letter dated 12 October 2015 from solicitors acting for Burrows’ Heritage Trust Ltd, the then legal owner of the driveway, to Mr Bilkey’s solicitors seeking an assurance that the driveway would not be used for vehicular access and threatening to seek an interim injunction if this was not provided. The solicitors did not explain why vehicular access down the driveway was not permitted. Mr Bilkey’s solicitors researched the position and concluded that

_{the right of way covers the entire driveway, consistent with Mr
Taylor’s use of it for}

⁴New Zealand Farmers Co-op Assn of Canterbury Ltd v Farmers Trading Co Ltd (1979) 1

vehicular access for many years. The defendants proceeded in accordance with this advice and declined to give the requested assurance.

[29] The defendants have not acted with their “eyes wide open” in the sense that they are driving on Ms Mansfield’s land knowing that they have no right to do so. Rather, they are exercising what they genuinely believe are their legal rights based on their review of the historical deeds and the advice of their solicitor and their surveyor.

[30] Where other factors are evenly balanced, the Court often favours a solution that preserves the status quo. However, there is often considerable argument about when the status quo should be assessed. This case provides yet another example of this. Mr Campbell submits that the status quo should be assessed prior to the proceeding being issued. At that time, the driveway was not being used by the defendants against whom the injunction is now sought. Mr Kohler submits that the status quo is that the driveway provides vehicular access to all of the land, including the defendants’ land.

[31] There is some merit in both of these points of view. Ms Mansfield is seeking to prevent vehicular access down the driveway despite the fact that this has been occurring for at least 20 years. In that sense, she is seeking to disturb the status quo. On the other hand, as Ms Mansfield says, the more intensive use of the driveway that is now occurring is new. In that sense, her injunction application seeks to preserve the status quo. I do not consider that this is a case where an analysis of the status quo provides much assistance in guiding the outcome that will best serve the ends of justice.

[32] Because an injunction is an equitable remedy, any delay that prejudices the defendant is likely to be relevant. Mr Kohler submits that delay is a significant factor that should weigh against the grant of Ms Mansfield’s application for an interim injunction. Ms Mansfield’s evidence is that she has been in a position to

acquire the driveway for approximately five or six years as a result of her friendship with Margaret Edgcumbe, a descendant of Reverend Burrows. Mr Kohler submits that Ms Mansfield ought to have taken steps much earlier, before the defendants became involved, to clarify the legal position. Instead, he submits that she has “held her hand” and “slept on her rights”.

[33] I am not persuaded that Ms Mansfield has delayed in seeking relief from the Court or that this has prejudiced the defendants. As noted, Ms Mansfield did not take title to the driveway until 18 December 2015. She brought the present application four days later. Mr Bilkey may not have been aware of the reasons why Ms Mansfield claims that the right of way does not allow for vehicular access down the full length of the driveway at the time he purchased. However, the agreement was only conditional at that stage. The agreement did not become unconditional until after Mr Bilkey had obtained legal advice on the effect of the historical deeds granting the rights of way. Mr Bilkey and the other defendants have not been misled by any inaction on Ms Mansfield’s part. They have proceeded in accordance with their own legal and surveying advice.

[34] Mr Kohler submits that an injunction would be difficult to enforce because contractors and other visitors to the properties cannot see where the claimed limits of the right of way are; all they can see is a uniformly wide, formed driveway bordered by wooden fences. He submits that the Court should not make an order that will be difficult to interpret and enforce in a practical sense.

[35] It was in response to this submission that Mr Campbell advised that Ms Mansfield proposes to overcome this difficulty by painting a diagonal line down the driveway conforming with the surveyed line shown on the plan attached to this judgment. Mr Campbell submits that difficulties with compliance should not deter the Court from making the order.

[36] I consider that this is a relevant factor and illustrates the practical difficulties

that will arise if Ms Mansfield’s application for an interim injunction is granted.

[37] At the end of the process, after considering all relevant matters, the Court is required to stand back and consider which outcome will best meet the overall interests of justice. I have reached the clear view that Ms Mansfield’s application for interim injunction must be declined. Although she has an arguable case that the defendants are trespassing on her land, the defendants have an arguable defence that the registered right of way entitles them to vehicular access to their properties using the driveway. It would be inappropriate and unnecessary to go further and express any view as to the relative strengths of the parties’ cases based on the limited information currently available. However, the defendants’ position is supported by the physical location of the driveway and is consistent with its use by Mr Taylor and Ms Mansfield for vehicular access to their properties for many years, presumably based on their understanding that the right of way extends over the entirety of the driveway.

[38] I consider that damages will be an adequate remedy for any trespass occurring during the comparatively short period until this matter can be determined at trial. This is a significant factor weighing against the grant. I also take into account that considerably greater disruption and damage overall is likely to result from the grant of the injunction than if it is refused. The practical difficulty of complying with the proposed injunction is another factor weighing against it.

High Court of New Zealand Decisions

Mansfield v Bilkey [2016] NZHC 752 (21 April 2016)