Neighbours lose litigation attempt to stop 13-unit $15m Remuera townhouses being finished

Work has now progressed far beyond this stage and buyers will shift in shortly. Photo / Brett Phibbs

Neighbours have lost their case to stop a $15 million Remuera apartment project from being completed by having the court declare titles could not be issued and sale agreements could not be settled, meaning people wouldn't get their new homes.

Justice Grant Powell in the High Court at Auckland dismissed an application from eight neighbours of the new nearly-finished townhouses on Ventnor Rd opposite the former Caughey Preston rest home property.

The neighbours asked the court to stop developer Kurt Gibbons from issuing titles to buyers of the 13 new homes.

They wanted the court to bar him from getting separate titles issued to the individual townhouses and wanted him stopped from settling all the sales to buyers who have paid deposits.

Gary and Vicki Wallace - neighbours who went to court. Photo / Norrie Montgomery.

Neighbours Gary and Vicki Wallace, Richard and Eleanor Brabant, Jason and Lesley Orr and David and Tracy Pedersen sought interim orders to prevent the completion of the development.

The neighbours argued if titles were created and the sales agreements were settled, the project would be "essentially irreversible". Yet they plan further court action against it so they wanted completion stopped to protect their positions.

"If the development is completed and the individual units subdivided and sold, the development becomes "essentially irreversible"," the decision said on the applicants' arguments.

"At that point, even if the substantive judicial review proceedings are successful, there will be no prospect of the applicants obtaining the remedy provided in the initial proceedings, and therefore the prospect of effective relief would be essentially if not entirely thwarted."

Gibbons today welcomed the neighbours' litigation loss and attempt to stop him from finishing.

Richard Brabant, one of the applicants, said in response to the decision today: "Our collective position remains as advised before. There will not be any public comment or statements from us. I invite you though to visit our street and view the 'finished product'."

Gibbons said buyers would be shifting in shortly.

Gibbons at the site where neighbours lost a court attempt to have work stopped. Photo / Brett Phibbs

"This decision was heard by a judge and he knows the background of the whole thing. He thought the plaintiffs had a very weak case," he said.

Construction at the project would be finished next Wednesday and titles would be issued within the next fortnight, Gibbons said today.

Residents would shift in before the end of June.

"It's cost me a lot of money, this holdup. It's probably up to $700,000."

Work was stopped from November through till the new consent around March.

"There's nothing that I'd do differently as a result of this. We're building to what we're allowed to do. We're not trying to exceed coverage, height to boundary or maximum height. Our developments could be much bigger under the new rules and not have any parking but I'll always provide parking."

The judge's June 3 decision noted the background.

"The applicants' opposition to the development is long-standing. After 44 Ventnor Ltd obtained non-notified resource consent to develop 13 dwellings on the site at 44 Ventnor Road in March 2021, the applicants commenced judicial review proceedings in respect of both the notification decision and the substantive decision granting consent," the judge noted.

Gibbons stopped work and sought a new consent.

The decision described the financial cost of the holdups to Gibbons.

It was clear from Gibbons' evidence, filed on behalf of his company that it had expended significant sums to date - some $15m.

If settlement of the sale of the units was prevented, 44 Ventnor Ltd would face immediate and significant holdings costs on the development, the judge said.

Richard Brabant was one of the applications in the latest case. Photo / Greg Bowker

"Gibbons has calculated these costs will amount to approximately $29,003.70/week, consisting of interest of $20,667.63/ week and holding costs including security, insurance and rates of approximately $8336.07," the decision said.

"While 44 Ventnor Ltd has taken the commercial risk of construction, at no stage have the applicants previously sought interim orders so as to stop 44 Ventnor Ltd from continuing with construction in accordance with the resource consents it has obtained.

"At the same time, and despite two High Court proceedings, there is no suggestion that 44 Ventnor Ltd has at any point acted improperly in undertaking the development," the judge noted.

The neighbours had argued that the buyers could be dealt with via the sunset clause in their agreements for sale and purchase - meaning when the sun set on the date due for completion and handover, their contracts would become null and void.

But the judge said there was "an air of unreality about the applicants' submissions" on that score.

He dismissed the neighbours' application for interim orders and said Gibbons' company was entitled to costs. If this wasn't agreed on between the two parties, he would determine that issue also.

Fury about the project came to light last November when the neighbours did successfully temporarily stall construction at the site.

Justice Gerard van Bohemen allowed an appeal against Auckland Council's resource consent for the townhouses.

But in March, Gibbons won two new consent decisions, allowing him to finish the places.

Independent hearing commissioners Richard Blakey and Kitt Littlejohn ruled that resource consent for the places can be processed non-notified, meaning no one will have a say.

In addition, Gibbons won a new land-use consent, the final document he needed to get workers back to his site.

Gibbons said in March the holdups had cost him about $500,000 "which would send most others broke".

But today he put the figure at closer to $700,000.