MJ WHITTLE AND HJ EGGINK AS TRUSTEES FOR THE KAITUNA TRUST OF 14 WAKAMETE ROAD, GLEN EDEN, AUCKLAND V ROGER MALCOLM JONES HC AK CIV2005-404-3913

MJ WHITTLE AND HJ EGGINK AS TRUSTEES FOR THE KAITUNA TRUST OF 14 WAKAMETE ROAD, GLEN EDEN, AUCKLAND V ROGER MALCOLM JONES HC AK CIV2005-404-3913

Summary judgment was declined. The Court exercised its residual discretion under r136(2) to refuse summary dismissal and to permit the plaintiffs to amend their statement of claim to seek declaratory and enforcement relief because the defendant had not demonstrably fully complied with the undertakings and it would be unjust to deny the plaintiffs an opportunity to seek enforcement orders; the Court made no finding on whether the withdrawal promise was conditional on full compliance.

Citation
openlaw-4ff7362a_037d_4201_99b2_3c12bd97db0f.pdf
Parties
Plaintiff (trustee): Michael John Whittle (trustee for the Kaituna Trust); Plaintiff (trustee): Henrick Jan Eggink (trustee for the Kaituna Trust); Defendant: Roger Malcolm Jones
Court
High Court
Jurisdiction
New Zealand
Judgment Date
8 May 2006
Procedural Posture
Civil (neighbour Dispute Trespass/nuisance/easement) / Application for Summary Judgment Under High Court Rules R136(2) (reserved Judgment)
Outcome
Summary judgment declined; plaintiffs permitted to amend pleadings and proceeding returned to standard track
Legal Topics
Summary Judgment, Trespass, Nuisance, Easement, Agreement Enforcement, Neighbour Disputes
Tort Property Law Civil Procedure Summary Judgment Trespass Nuisance Easement Agreement Enforcement +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 5 Authorities cited 9 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Michael John Whittle (trustee for the Kaituna Trust)

Plaintiff (trustee)

Henrick Jan Eggink (trustee for the Kaituna Trust)

Plaintiff (trustee)

Roger Malcolm Jones

Defendant

Procedural Posture

Civil (neighbour Dispute Trespass/nuisance/easement) / Application for Summary Judgment Under High Court Rules R136(2) (reserved Judgment)

Legal Issues

  1. 1 Whether the plaintiffs' promise to withdraw proceedings constitutes a complete defence to all causes of action
  2. 2 Whether the defendant has fully performed the undertakings on which the withdrawal promise was conditioned
  3. 3 Whether summary judgment under r136(2) should be granted or refused in the exercise of the Court's residual discretion to permit amendment and enforcement relief

Ratio Decidendi

Summary judgment was declined. The Court exercised its residual discretion under r136(2) to refuse summary dismissal and to permit the plaintiffs to amend their statement of claim to seek declaratory and enforcement relief because the defendant had not demonstrably fully complied with the undertakings and it would be unjust to deny the plaintiffs an opportunity to seek enforcement orders; the Court made no finding on whether the withdrawal promise was conditional on full compliance.

Court Disposition

Summary judgment declined; plaintiffs permitted to amend pleadings and proceeding returned to standard track

Orders

  • Plaintiffs to file and serve an amended statement of claim within 21 days
  • Proceeding returned to standard track and allocated an initial telephone conference within six weeks