PASCOE v NGĀTI TAMA CUSTODIAN TRUSTEE LIMITED [2023] NZHC 805

PASCOE v NGĀTI TAMA CUSTODIAN TRUSTEE LIMITED [2023] NZHC 805

The application for an interim injunction was dismissed because the applicants failed the urgency requirement under r 7.53(2), and, substantively, there was no serious question to be tried: the 1985 licence had expired, no conservation concession was obtained so no enforceable grazing interest existed at vesting, any informal permission was terminable and was validly terminated by notice, and the deed and settlement legislation did not create enforceable grazing rights in the Pascoes; accordingly the balance of convenience and overall justice favoured respondents.

Citation
[2023] NZHC 805
Parties
Applicant: Tony James Sofus Pascoe; Applicant: Debbie Ann Pascoe; First Respondent: Ngāti Tama Custodian Trustee Limited; Second Respondent: Waka Kotahi (NZ Transport Agency); Third Respondent: Minister of Land Information
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 April 2023
Procedural Posture
Civil – Application for Interim Injunction (without Substantive Proceeding Filed) / Interim Injunction Application / Interlocutory Stage (application Dismissed)
Outcome
Application for interim injunction dismissed
Legal Topics
Interim Injunctions, Urgency Under High Court Rules R 7.53(2), Grazing Rights, Informal Grazing Licence, Conservation Covenant, Proprietary Estoppel, Profits À Prendre, Balance of Convenience, Kaitiakitanga/rangatiratanga
Property Law Equity Civil Procedure Conservation Law Statutory Interpretation Public Works Law Treaty Settlements Interim Injunctions +8 more

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Parties

Tony James Sofus Pascoe

Applicant

Debbie Ann Pascoe

Applicant

Ngāti Tama Custodian Trustee Limited

First Respondent

Waka Kotahi (NZ Transport Agency)

Second Respondent

Minister of Land Information

Third Respondent

Procedural Posture

Civil – Application for Interim Injunction (without Substantive Proceeding Filed) / Interim Injunction Application / Interlocutory Stage (application Dismissed)

Legal Issues

  1. 1 Whether the without-notice interim injunction met the urgency requirement of r 7.53(2) High Court Rules 2016
  2. 2 Whether there is a serious question to be tried that the Pascoes possess enforceable grazing rights over the Mt Messenger land
  3. 3 Whether any grazing right was preserved by the Ngāti Tama deed of settlement or settlement legislation

Ratio Decidendi

The application for an interim injunction was dismissed because the applicants failed the urgency requirement under r 7.53(2), and, substantively, there was no serious question to be tried: the 1985 licence had expired, no conservation concession was obtained so no enforceable grazing interest existed at vesting, any informal permission was terminable and was validly terminated by notice, and the deed and settlement legislation did not create enforceable grazing rights in the Pascoes; accordingly the balance of convenience and overall justice favoured respondents.

Court Disposition

Application for interim injunction dismissed

Orders

  • Application for interlocutory injunction dismissed
  • Costs to respondents to follow the event on a category 2B basis unless agreed