GREGORY & ORS v EK TRUST LIMITED & ORS [2015] NZHC 1785

GREGORY & ORS v EK TRUST LIMITED & ORS [2015] NZHC 1785

Interim relief refused: applicants' primary claim that the easement implies a right to install or maintain a gate on the servient land is weak (though not entirely frivolous) and the balance of convenience is roughly even; the alternative application to modify the easement under s 317 fails at the serious question...

Source-derived case information.

Citation
(2005) 16 NZCPR 519
Parties
Applicant: CAMERON THOMAS GREGORY; Applicant: TRACEY MICHELLE GREGORY; Applicant: COLIN CHARLES MCKAY; First Respondent: EK TRUST LIMITED; Second Respondent: CHRISTIAN FAMILY TRUST LIMITED; Third Respondent: PETER JAMES FORDE; Third Respondent: DEAN WILLIAM REVELL; Third Respondent: ELIZABETH REVELL
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 July 2015
Procedural Posture
Interim Injunction Application Under Part 19 High Court Rules and Sections 313 and 317 Property Law Act 2007 / Interlocutory Decision on Application for Interim Relief (injunction)
Outcome
Application for interim relief (injunction) declined
Legal Topics
Right of Way, Ancillary Rights to Easements, Modification of Easements (s317 PLA 2007), Interpretation of Easements, Balance of Convenience
Property Law Easements Civil Procedure Injunctions Right of Way Ancillary Rights to Easements Modification of Easements (s317 PLA 2007) Interpretation of Easements +1 more

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 17 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

CAMERON THOMAS GREGORY

Applicant

TRACEY MICHELLE GREGORY

Applicant

COLIN CHARLES MCKAY

Applicant

EK TRUST LIMITED

First Respondent

CHRISTIAN FAMILY TRUST LIMITED

Second Respondent

PETER JAMES FORDE

Third Respondent

DEAN WILLIAM REVELL

Third Respondent

ELIZABETH REVELL

Third Respondent

Procedural Posture

Interim Injunction Application Under Part 19 High Court Rules and Sections 313 and 317 Property Law Act 2007 / Interlocutory Decision on Application for Interim Relief (injunction)

Legal Issues

  1. 1 Whether there is a serious question to be tried that the easement grants the dominant owners a right to install or maintain a gate on the servient land
  2. 2 Whether the balance of convenience and overall justice favour interim reinstatement of the gate
  3. 3 Whether a dominant owner can apply to modify an easement under s 317 PLA 2007 (requirement that applicant be a person bound)

Ratio Decidendi

Interim relief refused: applicants' primary claim that the easement implies a right to install or maintain a gate on the servient land is weak (though not entirely frivolous) and the balance of convenience is roughly even; the alternative application to modify the easement under s 317 fails at the serious question to be tried threshold because dominant owners are not "persons bound" and therefore cannot invoke s 317; overall justice disfavors granting an injunction reinstating the gate.

Court Disposition

Application for interim relief (injunction) declined

Orders

  • Application for interim relief declined
  • Costs reserved pending outcome of substantive hearing