Dispute involves right of way relating to neighbours sharing primary access to their properties
In a property dispute revolving around a right of way, New Zealand’s Supreme Court refused permission to appeal despite acknowledging the uncommon circumstances, with an engineering expert asserting a position differing from his trial evidence at the appeal stage.
In Shores v Howden, [2025] NZSC 112, the parties were neighbours. The primary access to their properties was from Glengarry Avenue, Whangaparāoa.
The respondents bought their property in late 2003. In 2004, they reinforced a broken driveway with concrete to enjoy a secondary right of way over the applicant’s land. Originally granted in 1966, this right of way connected their property’s side to an unformed extension to Layton Road.
In 2019, the applicant opted to subdivide her property. That October, the applicant’s partner met with the respondents to discuss his and the applicant’s plans to remove the driveway. The partner alleged that the right of way did not exist.
In November 2019, the applicant ignored a cease-and-desist letter from the respondents’ lawyer, demolished the driveway, and built fence posts preventing vehicular access.
The respondents applied for court orders requiring the applicant to dismantle the posts and reinstate the driveway. The applicant cross-applied for the extinguishment of the right of way.
In March 2023, Judge Allison Sinclair of New Zealand’s District Court dismissed the applicant’s cross-application, recognised the right of way, and directed the parties to negotiate the reinstatement of access.
The applicant appealed to New Zealand’s High Court. After the parties’ negotiations failed, the District Court judge issued orders requiring the applicant to remove the posts and restore the driveway.
In August 2023, the applicant amended her notice of appeal to the High Court to allege that the District Court judge erroneously granted the orders in the second judgment.
In two interlocutory applications filed in September 2023 and March 2024, the applicant requested leave to adduce more appeal evidence before the High Court.
The proposed evidence sought to support the applicant’s argument that the right of way was superfluous and extinguishable under s 317(1)(d) of the Property Law Act 2007 without substantially injuring the respondents, since an alternative driveway would be more practical and workable than reinstating the former driveway.
The proposed evidence included two affidavits, one of which was from the applicant’s original engineering expert at the District Court trial.
The engineering expert acknowledged that he had previously agreed with the evidence of the respondents’ expert that constructing an alternative accessway from the respondents’ property to Layton Road would be impractical.
However, the engineering expert retracted that agreement and alleged that he provided part of his evidence in error and without due consideration.
In two judgments, the High Court denied leave to adduce the affidavits. However, the court granted leave to appeal the decisions to New Zealand’s Court of Appeal.
The Court of Appeal dismissed the applicant’s appeals upon determining that the case failed to meet the test for admitting new evidence on appeal.
The applicant requested leave to appeal to the Supreme Court. She alleged that refusing to hear the appeal might cause a substantial miscarriage of justice, given that her proposed appeal raised a matter of general and public importance.
The Supreme Court of New Zealand dismissed the application for leave to appeal and ordered the applicant to pay the respondents one set of costs of $2,500.
The court did not consider it necessary in the interests of justice to hear and determine the proposed appeal at the interlocutory stage.
The court found no real risk of a substantial miscarriage of justice in the civil context if it denied leave to bring a second appeal at this point in the proceedings.
The court saw no evident error in the courts’ concurrent conclusions that the proposed evidence was not fresh because the applicant could have adduced it at trial with reasonable diligence.
The Supreme Court agreed with the appeal court that the applicant could have asked the engineering expert to investigate and report on the matters raised in the proposed evidence.
The court accepted the uncommon circumstances of this appeal, with an expert seeking to depart from his trial evidence at the appeal stage. However, the court rejected the submission that the circumstances showed a lacuna in the law.
The court pointed out that it would seldom find discretionary and interlocutory decisions suitable for a challenge before the substantive proceeding’s conclusion.
The court noted that the respondents accepted that the engineering expert’s stance shifted because he adopted a different assumption on appeal from the one he took at trial.
On appeal, the court told the applicant she could point to the earlier assumption to discredit the engineering expert’s previous opinion.
