Aerial shot of Herne Bay, Auckland. Real Estate OneRoof
Aerial shot of Herne Bay, Auckland. Real Estate OneRoof
Herne Bay neighbours with multimillion-dollar waterfront homes ended up in the High Court over a dispute about building a swimming pool, boathouse and cabana, doing earthworks and pōhutukawa trimming.
Action was taken against a director of the powerful Viaduct Harbour Holdings, which owns around 22ha of waterfront Auckland, bya neighbouring property owner who wanted to have a say in the pool and tree works.
Gordon Bailey and his company Cooper Science Consulting went to court against Justin Mark James Wyborn, who Companies Office records show, is one of several directors of the powerful leasehold landlord, Viaduct Harbour Holdings.
At issue were Wyborn’s works at his Herne Bay home, which he was entitled to do. Auckland Council had without notification granted consent.
Bailey is the sole trustee of an entity owning the relevant Marine Parade property, while Wyborn owns land adjacent to that place, the court noted.
Bailey asked the High Court for an interim injunction to temporarily stop Wyborn building his new pool, a cabana, doing landscaping and earthworks and pruning protected trees and coastal works for a boatshed.
Yet the council had granted non-notified consents for the works to take place, the court noted. That permitted Wyborn to do the works and trim pōhutukawa branches.
Davey Salmon KC and Rachel Keane represented Wyborn.
They argued against Bailey’s interim injunction application, citing concern about financial costs and implications of it being granted.
“The work involves specialist expertise and equipment, and steps that are inter-reliant on one another. Some contracts have already been entered into and materials bought,” the court heard.
The yard where work was taking place had already been dug up as well “and if an injunction were granted, it would remain in that state”, the Wyborn’s lawyer argued.
Contractual obligations had been struck for the works to start and delay would disrupt that and could incur liability as well.
Davey Salmon KC represented Wyborn. Photo / Mark Mitchell
Construction of the pool near the cliff edge was another issue, with concern raised last year about land stability piles intended to support the swimming pool structure which could not be installed.
“They say that their insurance policy is unclear as to whether any slip that occurs would be covered in the context of an interim injunction stopping work”.
But an interim injunction was granted against Wyborn, barring works from taking place on the seaward side of the house.
Swimming pool construction and landscaping earthworks involving machinery or drilling for piles in the north-facing cliff-top area were protected by an encumbrance.
Restraint was also granted against Wyborn cutting pōhutukawa trees to build the boatshed below his Herne Bay home.
Those interim orders were made in a decision on October 6 last year by Justice Alisa Duffy.
But this week, with the matter back in court, Bailey wanted to discontinue his court action due to the trust planning to sell his place.
“The plaintiffs advise that the sole reason for the discontinuance is that the first plaintiff has entered into an unconditional sale and purchase agreement with an unrelated third [party],” the November 10 decision from Justice Jane Anderson noted.
The council wanted Bailey to pay costs of $14,000 for his now-abandoned court action.
Justice Anderson ordered Bailey to pay those costs.
Anne Gibson has been the Herald’s property editor for 23 years, has won many awards, written books and covered property extensively here and overseas.
