CAP D'AMARRES RESIDENTS' ASSOCIATION INCORPORATION V EDWARDS HC AK CIV-2011-404-6434

CAP D'AMARRES RESIDENTS' ASSOCIATION INCORPORATION V EDWARDS HC AK CIV-2011-404-6434

The Court found there was a serious issue to be tried and that the balance of convenience favoured reinstating the cancelled swipe card for the sublicensee immediately, but subject to a condition limiting parking on the relevant lot (lot 11) to no more than two vehicles at any one time; other relief sought was refused and the matter was adjourned to the substantive hearing date with costs reserved.

Citation
openlaw-bc253f07_35c4_4dbc_b8eb_2a896ad99693.pdf
Parties
First Plaintiff: CAP D'AMARRES RESIDENTS' ASSOCIATION INCORPORATION; Second Plaintiff: Alan Flitcroft and Chrystine Flitcroft; Third Plaintiff: Ian Clarence Jones, Shirley Gwendoline Jones and Shale Chambers; First Defendant: Simon Jeremy Rei Edwards, Kitping Tan and CST Trustees Limited; Second Defendant: David Donald Morgan, Glennis Doreen Morgan and Spicers Trustee Company (2005) Limited; Third Defendant: John Winter, Anna Karin Elisabeth Winter and Auckland Trustees & Executors Limited; Fourth Defendant: Joyce Ida Fisher, Clayton Trevor Arthur Stent and Ian Lawrence Britten
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 December 2011
Procedural Posture
Interim Injunction Application (civil) / Interlocutory Hearing and Decision
Outcome
Interim injunction granted in part: swipe card reactivated for the sublicensee subject to parking limit; other orders refused; matter adjourned; costs reserved
Legal Topics
Interim Injunction, Gated Community Access, Bylaws and Rules, Sublicence, Parking Rights, Balance of Convenience
Property Law Civil Procedure Equity Contract Interim Injunction Gated Community Access Bylaws and Rules Sublicence +2 more

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Parties

CAP D'AMARRES RESIDENTS' ASSOCIATION INCORPORATION

First Plaintiff

Alan Flitcroft and Chrystine Flitcroft

Second Plaintiff

Ian Clarence Jones, Shirley Gwendoline Jones and Shale Chambers

Third Plaintiff

Simon Jeremy Rei Edwards, Kitping Tan and CST Trustees Limited

First Defendant

David Donald Morgan, Glennis Doreen Morgan and Spicers Trustee Company (2005) Limited

Second Defendant

John Winter, Anna Karin Elisabeth Winter and Auckland Trustees & Executors Limited

Third Defendant

Joyce Ida Fisher, Clayton Trevor Arthur Stent and Ian Lawrence Britten

Fourth Defendant

Procedural Posture

Interim Injunction Application (civil) / Interlocutory Hearing and Decision

Legal Issues

  1. 1 Whether the sublicensee is entitled as an Invitee under rule 5.1 to full use of the Owner's Lot and Common Facilities including driving along Rue d'Amarres and parking on lot 11
  2. 2 Whether the Association was entitled to cancel the sublicensee's swipe card and whether the court should order its reactivation as an interim measure
  3. 3 Whether unlimited parking on undeveloped lots is permitted under the rules, design guidelines and bylaws

Ratio Decidendi

The Court found there was a serious issue to be tried and that the balance of convenience favoured reinstating the cancelled swipe card for the sublicensee immediately, but subject to a condition limiting parking on the relevant lot (lot 11) to no more than two vehicles at any one time; other relief sought was refused and the matter was adjourned to the substantive hearing date with costs reserved.

Court Disposition

Interim injunction granted in part: swipe card reactivated for the sublicensee subject to parking limit; other orders refused; matter adjourned; costs reserved

Orders

  • Immediate reactivation of the cancelled remote control/swipe card enabling vehicular and pedestrian access for the sublicensee, subject to the condition that no more than two cars may be parked on lot 11 at any one time
  • Orders confined to that swipe card and lot 11; no order made in respect of other swipe cards or broader relief