Filleul Apartments JV Ltd v Salis [2019] NZDC 4307

Published 11 July 2019

Stay of Execution — property rights — property access — Property Law Act 2007, ss 319 & 320. The parties had neighbouring buildings and were engaged in litigation, including an appeal before the High Court. The respondents filed an application for a Stay of Execution of the Court's judgment which granted the applicant access to the respondents' open area carpark to enable them to complete construction on their apartment building on adjoining land. The respondents submitted that their appeal was bona fide, in that they wished to exercise their property rights as the applicant had previously caused damage to some of their property and had not repaired it. The applicant had urgent waterproofing to complete on the property and had already sold more than half the apartments in the development to purchasers awaiting completion of the building. The Judge noted that the respondent's rights are specifically addressed by ss 319 and 320 of the Property Law Act and that the respondents could provide no evidence as to how the applicant's access would be inconvenient or cause ongoing damage. For that reason, the Judge found there was no proper basis for a Stay of Execution pending determination of the appeal, and dismissed the application. Costs were payable on a 2B basis. Judgment Date: 12 March 2019.