IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2015] NZHC Applicants EK TRUST LIMITED

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1 IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2015] NZHC 1785 UNDER BETWEEN Part 19 of the High Court Rules and Sections 313 and 317 of the Property Law Act 2007 CAMERON THOMAS GREGORY, TRACEY MICHELLE GREGORY, AND COLIN CHARLES MCKAY Applicants AND EK TRUST LIMITED First Respondent CHRISTIAN FAMILY TRUST LIMITED Second Respondent PETER JAMES FORDE DEAN WILLIAM REVELL and ELIZABETH REVELL Third Respondents Hearing: 23 July 2015 Counsel: H Waalkens QC for applicants D Chisholm QC and A J Steel for respondents Judgment: 31 July 2015 JUDGMENT OF KATZ J This judgment was delivered by me on 31 July 2015 at 4:00pm Pursuant to Rule 11.5 High Court Rules Registrar/Deputy Registrar Solicitors: Counsel: Wilson McKay, Auckland Brown Partners, Auckland H Waalkens QC, Quay Chambers, Auckland D Chilsholm QC, Barrister, Auckland GREGORY & ORS v EK TRUST LIMITED & ORS [2015] NZHC 1785 [31 July 2015]

2 Introduction [1] The parties are the owners of neighbouring properties on Auckland s North Shore. Their homes are situated along a shared right of way off Rarere Road, Takapuna. The western strip of the right of way ( Western ROW ) is owned by the first respondent, a family trust associated with Evan Christian ( EK Trust ). The eastern strip of the right of way is owned by the applicants ( Gregory trustees ). There has been a gate at the top of the right of way since about [2] In March 2015 the EK Trust removed the part of the gate that was on the Western ROW. This rendered the gate on the other side of the driveway inoperable, so the Gregory trustees had no option but to remove it also. The Gregory trustees then filed these proceedings. They claim that the relevant easement expressly or impliedly permits a gate to be installed at the top of the driveway, and that the EK Trust breached the easement by removing the gate. They seek an interim injunction that the gate be reinstated until their claim is heard and finally determined. [3] Whether or not I should grant an injunction turns on the following key issues: 1 (a) Whether the Gregory trustees can establish that there is a serious question to be tried. In particular, is there a sound legal basis for the claim that they are entitled to have a gate erected (or maintained) across the part of the EK Trust s land that they have access rights over? (b) Whether the balance of convenience and overall justice favours the interim reinstatement of a gate, ahead of a full hearing of the parties dispute. 1 American Cyanamid Co v Ethicon Ltd [1975] AC 396, [1975] 1 All ER 504 (HL); Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 140 (CA).

3 Factual background [4] The property at 10 Rarere Road was purchased by the EK Trust in January It is at the end of the right of way, fronting on to Takapuna beach. Another family trust associated with Mr Christian, the Christian Family Trust Limited, owns 8A Rarere Road, which is at the top of the right of way, fronting the street. [5] Next to EK Trust s property is 9 Rarere Road, which was purchased by the Gregory trustees in 2006 as a home for Mr Gregory s parents-in-law, Mr and Mrs Lavell, who have lived there since then. There is one further house on the right of way, 8B Rarere Road. It is owned by the trustees of the Revell family trust, who support the position of the Gregory trustees in these proceedings. [6] The right of way was established in 1962 by two separate cross easements, contained in the same instrument. The easements provide each owner with rights of access over the portion of the right of way owned by their neighbour. The owners of 8A and 8B Rarere Road are also entitled to use the right of way, but only the Revell property actually does so. [7] There was no gate at the top of the driveway when the right of way was established in It seems likely that gates were first installed when the property was redeveloped 25 years later, in There appear to have been gates across the driveway since then. The gates, until their recent removal, consisted of a pedestrian swing gate on the western side of the driveway and two vehicular gates that operated automatically via electronic arms. The pedestrian gate and one of the vehicular gates was permanently affixed to the EK Trust s land by two iron posts and iron hinges on the western boundary wall. The other vehicular gate was permanently affixed to the Gregory trustees land by hinges on the eastern boundary wall. [8] In October 2013 Mr Christian approached his neighbours at 8 and 9 Rarere Road to see whether the gates might be modernised. That proposal did not meet with success.

4 [9] During 2014, tensions appear to have mounted over the volume of traffic down the right of way to Mr Christian s property. At least some of this traffic appears to have been related to major renovation works being undertaken on the property. To facilitate access to the property Mr Christian would post a note on his letterbox with the access code for the electronic gates. His neighbours took exception to this on security grounds and would remove the notes. As a result, visitors sometimes had difficulty getting access to Mr Christian s home (an intercom system appears to have been inoperable or unreliable). [10] Further, Mr Christian had safety concerns regarding the shared driveway, in relation to his young children. His preference was that each right of the three right of way users gate their own properties where they joined the right of way. The other users, however, did not wish to do so, on aesthetic and technical feasibility grounds. [11] Lawyers became involved in September 2014, but a flurry of legal correspondence did little to advance matters. On 2 October 2014, Mr Christian advised that he intended to remove those parts of the shared gate affixed to his property, but indicated a willingness to leave the gate up until his neighbours had erected their own gates at the boundaries of their respective properties. [12] Mr Gregory and Mr Christian met, unsuccessfully, to try and resolve matters. A subsequent letter from Mr Christian s solicitors on 31 October 2014 advised that Mr Christian was legally entitled to remove the shared gate affixed to his land, but expressed hope that the matter could still be resolved. [13] The Gregory trustees solicitor responded on 13 November 2014, disputing the EK Trust s right to remove the gate. Further correspondence between the solicitors did not advance matters. On 13 March 2015 Mr Christian s solicitor advised that Mr Christian was withdrawing from any negotiated process and: [H]as now made arrangements for removal of the gate within our client s title area, and the work will be commencing in the week beginning Monday, 23 March 2015.

5 [14] The Gregory Trustees solicitors responded by again disputing the right to remove the gate and saying further that: If your client continues to go ahead with their plan to remove the gate our client will be seeking a Court order to have the gate reinstated at your client s expense, damages and legal costs. [15] Once the ten day notice period had expired, on 23 March 2015, the EK Trust removed the gate on the Western ROW. The Gregory trustees were then, in effect, forced to also remove the half of the gate on their part of the land, as it was now inoperable. [16] The removal of the gate prompted the filing of these proceedings on 8 April The Gregory trustees seek a ruling on the correct interpretation of the easement and, if necessary, a variation or modification of the easement. The only issue I need to determine at this stage, however, is whether a gate should be reinstalled pending the final determination of those issues, which I anticipate will take place sometime early next year. Is there a serious question to be tried in relation to the interpretation of the easement? [17] The first issue I must determine is whether there is a serious question to be tried in relation to the interpretation of the easement. In other words, is it seriously arguable that the easement entitles the Gregory trustees to have a gate installed (or maintained) across the Western ROW, on land owned by the EK Trust? [18] The arguments advanced in this case appear to be novel. There are numerous cases (including in New Zealand, Australia, Canada and England) that have considered the flipside of the current situation, namely where a land owner (the servient owner) has put up a gate or other obstruction on their land, blocking a right of way. 2 The dominant owner (the person who is entitled to use the right of way) then applies to have the gate or obstruction removed. Counsel have been unable to identify any cases, however, where a dominant owner has argued an 2 See, for example, Iakopo v Hanif [2012] NZHC 1557 in New Zealand, Owners of Strataplan v Menala Pty Ltd (1998) BPR 97 (NSWSC) at 717 in Australia, and Bradley v Heslin [2014] EWHC 3267 (Ch) in the United Kingdom.

6 entitlement to put (or keep) a gate on the servient owner s land. My own research has met with a similar lack of success. Obviously, however, the fact that the arguments advanced are novel does not necessarily mean that they are not seriously arguable. Express terms of the easement [19] The easements were registered in 1962 and recorded in the same instrument. Easements are interpreted strictly in a land transfer system, such as that in New Zealand, which provides for indefeasibility of title. 3 Further, the easement is to be interpreted at the time it was created, in That is not to say, however, that just because there was no gate across the land in 1962 the correct interpretation of the easement might not allow for such a gate. [20] The easements appear to be fairly standard pedestrian and vehicular right of way easements, which are identical in their terms. The easement relating to the Western ROW is expressed as follows: the Grantor [10 Rarere Road] DOTH HEREBY TRANSFER AND GRANT unto the Grantees [9 Rarere Road] their servants tenants agents workmen and visitors and all persons having business with the Grantees or them a free and perpetual right of ingress egress and regress on horseback or on foot and with or without implement and vehicles of every description loaded or unloaded by night as well as by way in order and upon [the western driveway strip] for the purpose of giving access to and from [9 Rarere Rd] and to and from the public road TO THE INTENT that such easement of right of way hereby created shall be forever appurtenant to [9 Rarere Road] for all purposes whatsoever connected with the use and enjoyment thereof. (Emphasis added) [21] The owner of 10 Rarere Road (the EK Trust) is accordingly the grantor, or servient owner. It owns the land over which the access right has been granted. The owners of 9 Rarere Road (the Gregory trustees) are the dominant owner. They have 3 4 Harvey v Hurley (2000) 9 NZCPR 427 (CA) at [20]; Freestyle Enterprises Ltd v Starfin Group Ltd [2008] 1 NZLR 266 (HC) at [22] - [23]; D W McMorland (ed) Hinde McMorland & Sim Land Law in New Zealand (online looseleaf edition, LexisNexis) at [16.037]. Moncrieff v Jamieson [2007] UKHL 42, [2007] 1 WLR 2620 at [30]. Charles v Beach [1993] EWCA Civ J

7 been granted the right to traverse the Western ROW between 9 Rarere Road and the road, for all purposes connected with the use and enjoyment of their property. The relevant right is therefore a right of access to their property across the EK Trust s land. The purposes for which that access right may be exercised are all purposes whatsoever connected with the use and enjoyment of [9 Rarere Road]. What rights does the EK Trust arguably have in relation to the Western ROW? [22] Before turning to consider the arguments advanced on behalf of the Gregory trustees it is helpful to first consider the position of the servient owner, the EK Trust. [23] A servient owner is generally entitled to make whatever use they wish of their servient land, subject only to the limitation that that use must not substantially interfere with the use of the easement by the dominant owner. 5 The learned authors of McMorland on Easements, Covenants and Licences summarise the law regarding the servient owner s rights and obligations as follows: 6 As with any other easement, any wrongful interference with a right of way constitutes a nuisance. Since a right of way does not entitle the grantee, or those persons lawfully using the way under the grant, to go over every part of the surface of the land over which the way exists, not every obstruction of the way amounts to an unlawful interference. No action will lie unless there is a substantial interference with the easement granted; and before the grantee can justifiably complain of an obstruction it must be clear that the obstruction is prejudicial to the grantee. Whether any particular obstruction amounts to an unlawful interference with a right of way depends upon the nature of the right of way and of the place, and upon the particular circumstances of the case. Thus the erection of a gate in a right of way may or may not, according to circumstances, constitute a wrongful interference with the rights conferred by the grant, though the locking of the gate may readily cause an actionable obstruction even if the key is available. (Footnotes omitted) [24] Accordingly, as the servient owner, the EK Trust would generally be entitled to modify or alter its land provided that, in doing so, it does not substantially interfere with the rights of way granted to the owners of 8 and 9 Rarere Road. 5 6 Moncrieff v Jamieson, above n 4, at [45] cited with approval in Breslin v Lyons [2013] NZCA 161, (2013) 14 NZCPR 144 at [28]. D W McMorland McMorland on Easement, Covenants and Licences (2 nd edition, LexisNexis, Wellington, 2014) at [4.1.9].

8 [25] The EK Trust s position is that its rights extend to both removing and installing gates, or making any other modifications to its land that it wishes, provided that does not interfere with the access rights of the dominant owners under the easement. What rights do the Gregory trustees arguably have in relation to the Western ROW? [26] I now turn to consider whether there is a serious question to be tried that the Gregory trustees are entitled to have a gate reinstated across the Western ROW. [27] The primary argument advanced by the Gregory trustees in support of their claim to reinstate a gate on the Western ROW is that such a right, although not express on the face of the easement, is an ancillary right that is reasonably necessary in order for them to enjoy the access rights granted under the easement. [28] Although the express right conferred in the easement is a right to access or traverse the Western ROW, it is well established that the rights under an access easement also include certain ancillary rights, which are rights implied by necessity. The learned authors of Hinde McMorland and Sim summarise the position as follows: 7 The grant of an easement carries with it such ancillary rights as are reasonably necessary for the effective and reasonable exercise and enjoyment of the rights expressly granted. However those ancillary rights are restricted to the exercise of the rights expressly granted and any user of the servient tenement beyond those rights and purposes is a trespass, not being authorised by the grant. (Footnotes omitted) [29] Ancillary rights are therefore analagous to implied terms in contract law. The extent of any ancillary rights has to be determined with reference to the terms of the particular grant (easement). 8 A court will try to find what obligations, if any, on the part of the grantor can fairly be regarded as necessarily implicit, having regard to 7 8 D W McMorland (ed), Hinde McMorland and Sim Land Law in New Zealand, above n 3, at [16.038]. Nationwide Building Society v James Beauchamp [2001] EWCA Civ 275, [2001] 3 EGLR 6 at 10.

9 the particular purpose of the transaction when considered in the light of the circumstances subsisting at the time the transaction was entered into. 9 [30] There is extensive case law on ancillary rights in a right of way context, dating back (in England) hundreds of years. Ancillary rights will generally include a right to make the right of way reasonably fit for the purpose for which the way was granted. The authority for this proposition, Liford's Case, is over 400 years old. 10 [31] In Newcomen v Coulson it was held that the dominant owner was able to enter onto the servient land in order to construct a right of way that was suitable for the right granted to him. 11 In that case, the dominant land had originally been used for agricultural purposes. The right of way had been widely drawn, however, and included carriages. Over 100 years later the owner of the dominant land built 26 houses on it. It was held that the dominant owner had an ancillary right to build a metalled road over the right of way. As Jessell MR said: 12 If you grant to me over a field a right of carriageway to my house, I may enter onto your field and make over it a carriageway sufficient to support the ordinary traffic of a carriageway, otherwise the grant is of no use to me, because my carriage would sink up to the naves of the wheels in a week or two of wet weather. [32] Ancillary rights will generally include a right for the dominant owner to alter the surface of the land so as to better facilitate access to the property owned by the servient owner, for example by putting down gravel, sealing a right of way, or cutting steps into a steep slope. 13 There is also an ancillary right to repair the right of way, to ensure that it remains fit for purpose. There do not appear to (yet) be any cases, however, where it has been held that the installation of a gate is reasonably necessary for the effective and reasonable exercise of a right of access across land. [33] Mr Waalkens QC argued that, because the access easement has been granted for all purposes whatsoever connected with the use and enjoyment of 9 Rarere Johnston & Sons Ltd v Holland [1988] 1 EGLR 264 at 268 cited with approval in Platt v London Underground Ltd [2001] 2 EGLR 121 at 122 per Neuberger J. Liford's Case (1614) 11 Co Rep 46b. Newcomen v Coulson (1877) 5 ChD 133 (CA). At 143. Hanny v Lewis [1998] NSWSC 385, (1998) 9 BPR 16,205.

10 Road, it is implicit that a gate can be installed across the right of way. That is because the use and enjoyment of 9 Rarere Road includes having a secure property, secured among other things by a driveway gate. [34] In my view such an argument blurs the distinction between the right that has been granted, and the purpose for which that right has been granted. Many easements grant access rights that can only be exercised for very limited purposes, for example to maintain power lines, or a cellphone tower. In this case, however, (given that the easement relates to residential land) the access right may be exercised for any purpose connected with the use and enjoyment of 9 Rarere Road. [35] The easement does not, however, grant a separate and independent right to use the Western ROW for any purpose connected with the use and enjoyment of 9 Rarere Road. The sole right that has been granted is the right to access ( ingress, egress and regress ) 9 Rarere Road along the Western ROW. The purpose for which that access right may be exercised is any purpose connected with the use and enjoyment of 9 Rarere Road. The correct question is not therefore whether installation of a gate is reasonably necessary for the use and enjoyment of 9 Rarere Road, but whether installation of a gate is reasonably necessary to facilitate access to 9 Rarere Road, for any of the permitted purposes. [36] Obviously, a gate may well enhance the security of the properties down the right of way, as Mr Waalkens submitted. The easement does not, however, grant a right of security, but a right of access. Rather than facilitating access, the installation of a gate will generally impede access to and movement across land. Installation of a gate is not analogous to laying down gravel, or cutting steps into a slope, which are modifications to the servient land directly aimed at facilitating the exercise of the access right that has been granted to the dominant owner. [37] The Gregory trustees argument, that the installation of a gate across the Western ROW is reasonably necessary for the effective and reasonable exercise and enjoyment of their access rights, appears to me to be a weak one. I am not prepared to say at this preliminary stage, however, that it fails to meet the serious question to be tried threshold.

11 [38] The alternative argument advanced by the Gregory trustees was that a right to alter the land subject to the easement is implied by s126b of the Property Law Act 1952 ( PLA ). 14 The rights implied by s126b are set out in Schedule 9 of the PLA. Clause 2(a) includes the right to alter the state of the land over which the easement is granted: The following rights of the occupiers of the land for the benefit of which, and the land over which, the easement is granted: The right to establish a driveway, and to effect necessary repairs to any existing driveway, and to carry out any necessary maintenance and upkeep, where necessary altering the state of the land over which the easement is granted; and any necessary rights of entry on the land over which the easement is granted with or without machinery, plant, and equipment: [39] The Gregory trustees argued that the state of the land was altered in this case by affixing the gates to the driveway. It can be inferred that this must have been done with the consent of the then owner of the land. [40] Clause 2(a) of Schedule 9 to the PLA is, in essence, an express restatement of the ancillary rights doctrine I have discussed above. The right of a dominant owner to alter servient land over which a driveway runs is not absolute. The alterations must be necessary and be causally linked to the establishment, repairs, maintenance or upkeep of the driveway. The argument that this extends to the installation of a gate across the driveway is again likely to be a challenging one to advance at trial. I am not prepared to find, at this stage, that it is not seriously arguable. The argument, however, appears to be weak. Is there a serious question to be tried in relation to the application to modify the easement? [41] If the Court ultimately finds that the easement does not entitle the Gregory trustees to insist on the installation (or retention) of gates on the Western ROW, then they seek, in the alternative, an order that the easement to be modified to provide for such a right. 14 Although the Property Law Act 1952 has been repealed, its provisions continue to apply in some circumstances due to s 367(3) of the Property Law Act 2007.

12 [42] The modification application is made pursuant to s 317 of the Property Law Act 2007 ( PLA 2007 ). Section 316 of the PLA 2007 provides that an application under s 317 may be brought by a person bound by an easement. Person bound is defined in s 4 as meaning: person bound means, in relation to an easement an owner or occupier of the land against whom the easement or covenant is enforceable [43] In Harnden v Collins, Randerson J held that the jurisdiction to modify is only open to those bound by the easement in relation to which they seek modification, or in other words, the servient owner. He explained his reasoning as follows: 15 [54] this issue must be determined as a matter of interpretation of the relevant provisions of the PLA in the light of the statutory purpose. As earlier observed, the ability to apply to extinguish or modify an easement [under s 317] has always been limited to a servient owner bound by the easement. The power to grant relief under s 317 is focused on changes to the easement on the burdened land either by extinguishing it or modifying it. [55] The grounds upon which the application may be made are directed towards changes of circumstances since the creation of the easement relating to the use being made of the land having the benefit of the easement, the land burdened or both; the character of the neighbourhood; or any other relevant circumstances: s 317(1)(a). Alternatively, under s 317(1)(b) the applicant may rely on adverse effects on the reasonable use of the burdened land not reasonably foreseen when the easement was created. The last two grounds focus on the rights of the persons entitled to the benefit of the easement. Where they agree or may be considered to have abandoned or waived the right to the easement (wholly or partly), relief may be granted: s 317(1)(c). Under s 317(1)(d), the court may grant relief where the modification or extinguishment would not substantially injure the person entitled. [56] As earlier noted, an order for compensation under s 317(2) is made against the applicant as the servient owner. The intention of this provision as indicated by the parliamentary materials is ordinarily to compensate the persons entitled to the benefit of the easement where the effect of a modification or extinguishment is to diminish the value of the benefit of the easement. [57] In very broad terms, the power of the court under s 317 is directed towards relieving the burden of the easement on the applicant s land. Where the circumstances have changed since the easement was created or where the parties are in agreement or where the change sought does not cause substantial injury to the parties entitled to the benefit of the easement, relief may be granted in the discretion of the court. Any order made may be subject to an order for reasonable compensation against the applicant, ordinarily in favour of the party or parties entitled to the benefit of the 15 Harnden v Collins [2010] 2 NZLR 273 (HC) at [54] - [57].

13 easement to ameliorate any adverse effects upon them through the grant of the order. [44] His Honour rejected an argument that because part of the easement instrument bound the appellants (because, as in this case, two separate cross easements were granted in the same instrument) they were entitled to bring an application for modification. He stated that: 16 While the first and second appellants are servient owners in respect of those part of the easement to which their land is subject, they do not seek any modification or extinguishment of the easement on their land I am not satisfied s 317 was intended to permit an application in such circumstances. The first and second appellants interest in this application is not as servient owners but as dominant owners entitled to the benefit of the easement. [45] In order to obtain an order modifying the easement, the Gregory Trustees will face the challenging task of persuading the court that Harnden v Collins was wrongly decided. Further, they will need to convince the court that s 316 of the PLA, and the definition of person bound in s 4, should be interpreted otherwise than in accordance with their plain meaning. [46] Mr Waalkens key submission in support of an interpretation that would enable the dominant owner to apply to modify a covenant is that a literal interpretation of the provisions results in unfairness. It deprives dominant owners of any ability to seek to modify an easement that has been granted in their favour. He submitted that such an interpretation cannot be consistent with the statutory purpose of s 317. [47] The reasoning of Randerson J in Harnden v Collins is, in my view, compelling. It is consistent with not only the plain meaning of ss 316 and 317 (including the definition of person bound in s 4) but also the broader statutory scheme, including the various grounds that must be satisfied in s 317. To give an example, one of the grounds for modification of an easement is that the proposed modification or extinguishment will not substantially injure any person entitled. 17 Person entitled is defined as meaning an owner or occupier of the land who is entitled to enforce the easement or covenant, namely the dominant owner At [58]. Property Law Act 2007, s 317(1)(d).

14 (in this case, the Gregory trustees). 18 There is no comparable provision allowing for modification or extinguishment on the ground that the person bound (in this case, the EK Trust) will not be substantially injured. The asymmetry reflects that s 317 is directed towards relieving the burden of the easement on the applicant s land, rather than improving the position of the person with the benefit of the easement. [48] The learned authors of Megarry and Wade The Law of Real Property, describe the rationale of the corresponding English rule (relating to covenants) as follows: 19 Restrictive covenants, being free from any perpetuity rule, may last indefinitely, but changes in the social and economic environment may render them obsolete or may make their enforcement anti-social. As the Court had no inherent power to declare that a covenant is obsolete and unenforceable, a discretionary power has been given to the Lands Chamber of the Upper Tribunal to modify or discharge the restrictive covenant with or without the payment of compensation. [49] This passage makes clear that the rule was intended to allow the burden on the servient owner to be eased where specific circumstances rendered it obsolete or unfair in some way. [50] The ultimate parent provision of the section, referred to by Megarry and Wade, is a similarly worded English provision relating to covenants, which has existed at least since the main United Kingdom property statute, the Law of Property Act 1925, was passed. 20 The present s 317 appears to have existed (in some form) since at least the commencement of the Property Law Act [51] Despite the lengthy history of such provisions, there does not appear to be any case law supporting the claim that a dominant owner is entitled to apply to modify an easement (or a restrictive covenant). Randerson J s observation in Property Law Act 2007, s 4. Charles Harpum, Stuart Bridge and Martin Dixon Megarry and Wade The Law of Real Property (8 th edition, Sweet & Maxwell, London, 2012) at [32-085]. See Law of Property Act 1925 (UK), s 84 (as at enactment on 9 April 1925). Compare also the wording of the original New Zealand provision at s 127 of the Property Law Act 1952, and the Law of Property Act 1925 (UK), s 84, as well as comments made in D W McMorland A wider view of the jurisdiction to modify or extinguish easements or covenants (2006) 12 BCB 89. Property Law Act 1952, s 127 (as at commencement on 1 January 1953).

15 Harnden v Collins that the ability to apply to extinguish or modify an easement has always been limited to a servient owner bound by the easement is, in my view, an accurate statement of the law. [52] It follows that this particular aspect of the Gregory trustees claim fails to surmount the serious question to be tried hurdle. The Gregory trustees simply do not fall within the definition of person bound in s 4, on any available interpretation of that definition. [53] I further note that any relief under s 317 would be discretionary. I accept Mr Chisholm QC s submission that the possibility of discretionary relief under s 317 can only rarely form the basis of interim relief which results in an interference with a defendant s property. Rather, at the interim injunction stage, the focus should be on the existing legal position, not how that position may change in the future, if discretionary relief were granted. Balance of convenience/overall justice [54] I now consider whether the balance of convenience and overall justice favour the grant of an injunction. [55] These proceedings were filed on 8 April It appears that no efforts have yet been made by the Gregory trustees to obtain a substantive hearing date. I anticipate, however, that the claim could be heard early in The issue is therefore whether a gate should be installed on an interim basis until then. [56] If the gate is not reinstated, and it is subsequently determined at trial that it was wrongly removed, then the owners of 8 and 9 Rarere Road will have spent six months or so without a gate that they were entitled to have. The prejudice for them is that, without a gate, there is an increased security risk to the properties using the shared driveway. Affidavit evidence has been provided of two security incidents. The first incident involved a power tool being removed from the garage at 9 Rarere Road. That incident occurred when the gates were still in place, but the garage door had been left open overnight. A more recent incident involved a theft from the

16 garage at 8 Rarere Road, after the gates had been removed. Again, the garage door had been left open overnight. [57] On the other hand, if the gate is temporarily reinstated, and it is subsequently determined at trial that the EK Trust was entitled to remove it, then the Christian family will have had to put up with the inconvenience of the gate for six months or so longer than it should have. Essentially it will be put back in its previous position, where visitors had some difficulty at times accessing its property. I note that Mr Christian s previous practice of leaving a note with the gate access code posted on his letterbox led to conflict between the parties and resulted in the notes being removed by his neighbours. [58] Based on these factors the balance of convenience is, in my view, fairly even. [59] Mr Chisholm submitted that the Gregory trustees unduly delayed seeking an injunction. In particular, an injunction could have been sought during the ten day notice period prior to the gate being removed. It was not. Injunction proceedings were then filed two weeks later, on 8 April In my view the delay is not significant. The Gregory trustees presumably hoped that their solicitors letter, advising that any removal of the gate would result in an application for an injunction that it be reinstated, would be sufficient to deter the EK Trust from removing the gate. [60] The fact that an injunction was not sought until after the gate was removed does, however, alter the status quo somewhat. Currently there have been no gates at the top of the driveway for about two and a half months, although I also take into account that they were in place for about 25 years prior to that. [61] Given my view that the balance of convenience is roughly even, the determinative factor in my view is the overall strength of the Gregory trustees substantive claims. A weak case will generally weigh against the grant of relief Shotover Gorge Jet Boats Ltd v Marine Enterprises Ltd [1984] 2 NZLR 154 (HC) at 157 per Hardie Boys J.

17 [62] It may well be that Mr Christian acted in an un-neighbourly way by removing a gate that had been in place for at least 25 years. He would no doubt contend otherwise. The issue before me is not, however, whether he is a good neighbour. It is whether it is seriously arguable that the other right of way users are entitled to have a gate installed (or retained) at the top of the driveway. For the reasons I have outlined, the legal basis for such a claim appears to be weak. [63] The Gregory trustees alternative application, in which it seeks to modify the easement under s 317 of the PLA, fails to even reach the serious question to be tried threshold. The Gregory trustees are not persons bound by the easement. They are accordingly not entitled to make an application under s 317. Further, the possibility of a grant of discretionary relief in the future, altering the existing legal position, will not usually provide a proper basis for an injunction. [64] I note that Mr Waalkens has foreshadowed an amendment to the pleadings to include an estoppel claim. It may be that such a claim would provide a stronger legal foundation going forwards. I have not heard argument on the issue, however, and cannot take it into account in my assessment of the legal merits. [65] It is also relevant, in my view, that the parties were unable to cooperate in respect of the operation of the gate prior to its removal. Reinstatement of the gate prior to the substantive determination of these proceedings may lead to a recurrence of such problems, possibly requiring ongoing supervision or intervention of the court. [66] Taking all of these factors into account, I have not been persuaded that an injunction should be granted either requiring either the EK Trust to reinstate the gate, or permitting the Gregory trustees to enter onto the Western ROW for the purposes of installing a gate. [67] For the avoidance of doubt I note that this is an injunction application, not a substantive hearing or a strike out application. The views I have expressed on the legal merits are accordingly preliminary only. They are not intended to constrain, in any way, the argument that may be advanced at the substantive hearing.

18 Result [68] The application for interim relief is declined. [69] Costs are reserved, pending the outcome of the substantive hearing. Katz J