A. WHAT PARTIES WANT/OBJECTIVES:
RICHARD SHEPPARD (Owner of The Reaches)
- End shouts at the Claimant’s children while they will be around the Defendant’s land (Evendale).
- End let D’s dog loose both to bark and to attack at the C’s children.
- End using shotgun from scaring the C’s children (once Michael heard fire).
- End block by a padlocked gate from using the C’s right of way, namely gravel road.
- End digging from any new holes and immediately repair the existing holes over the road and upkeep the road to fulfil D’s legal duties towards the C in relation to the right of way.
- Continue to use the right of way without any unlawful interference from the D’s part.
- Cost of towing Jaguar to garage $100
- Cost of repairing damage to Jaguar $3500.
- Cost of hiring car @ $20 a day from 6th February 2004 and continuing (few more weeks).
- Pay as little on costs as possible.
- Resolve without further litigation.
EDWARD RIVETT (Owner of the Evendale)
1. Not be subject to order or court re injunction.
2. Keep the existing padlocked gate at the end of the gravelled road.
3.Prevent C and his family from fishing in the lakes and using the D’s property as their own.
4.Prevent the boys from racing the motorbikes up and down the gravel road and onto other parts of the property.
5.Prevent the boys from damaging the trees.
6.Cost of replacing the damage trees (4 at a cost of $350 plus VAT each and 3 at a cost of $365 plus VAT each)
7. Continue to plant the new trees off the road.
8. Financial contribution due to upkeep the road on the part of the C
B. WHAT IS DISPUTED?
Mr Sheppard appears to suggest that he is lawfully entitled to access the right of way over the Defendant’s adjoining land and be remained lawfully to be informed prior to undertake any obstruction by the D from using the gravel road.
Any other dispute is likely to be with regard to the extent of the unlawful interferences alleged by Mr Sheppard.
C. ITEMS TO BE NEGOTIATED
Ending injunction likely to be major priority for Mr Rivett but only a bargaining tool employed to reach an acceptable solution for Mr Sheppard.
Mr Sheppard keens to resolve the dispute over the right of way and want to access the gravel road without any restriction on it.
1.Blocked by a padlocked gate (Para 7):
On 6th February, When C and his wife reached the edge of the D’s property they found a padlocked gate had been put up across the road to the Reaches, though he managed to open the lock and drove through.
Concession: No need for a gate let alone a lock and never had any problem of using the gravel road. He put the padlock on to prevent local youths using their motorbikes on the land. There is a motorcycle club in the village but there is a dirt track on the edge of the village where they usually go. C’s never heard his boys near the place and he said the boys don’t race up and down the road.
Could phone the C before putting the lock.
Present injunction any unlawful interference.
C would pay to remove the gate. Would accept some form of gate with a method of locking which did not require a key.
On 19th Feb C saw the gate with a new padlock.
2.The car was damaged due to the holes over the road:
About a quarter of a mile down the road, the car went into a huge hole. There was a large clunk and it sounded as though something underneath the car had broken. The car was in the hole so deep and at such an angle that there was no point in trying to get it out. The hole looked as though it had been dug rather than having arisen from normal wear and tear. He and his wife had to walk a couple of miles to the nearest house where they called the local garage. The front end of the car was clearly very damaged. The man from garage who arrived had a look under the car and said that there was quite a lot of damage to the front end and undercarriage. He then towed them back to the garage .The mechanic looked at the car and said that fixing it would be a major job and would cost a lot of money because it is a vintage Jaguar.
He was driving little faster about 15 – 20 miles an hour, but not certain as wife said.
3.Upkeep the road:
D should be required to perform his legal duties towards the C with respect to the right of way and he would be most reluctant to undertake to do anything that was in fact his legal duty. He would be happy to contribute towards the maintenance. When Mr Hall owned it never asked to contribute on maintenance.
4. Shouts / Dog’s attack (Para 5):
D has shouted at the children, on several occasion when walking along the road, to get off his land.
Evi: all three of C’s sons have told him
At least twice, he let his dog loose and encouraged it to chase the boys. None of them hurt by the dog.
Evi: Michael, one time, came home with ripped clothing and said it was caused by the dog.
Concession: present injunction any unlawful interference.
Michael said he was certain that a shotgun had been fired once when he was walking on the road. C informed the police due to worry.
Concession: present injunction any unlawful interference.
6.Damages and Costs:
Cost of towing Jaguar to garage $100
Cost of repairing damage to Jaguar $3500. And a copy of receipt I have if you want I can show it to you. He can’t claim on his insurance, as his premiums are already sky high.
Cost of hiring car @ $20 a day from 6th February 2004 and continuing (few more weeks): 29 days until 5th March =$580, three weeks more 21 days * $20=$420. Total=$1000
The difficulty of getting the parts for the Jaguar may have to carry on hiring the car few weeks more, although C has a land Rover but need another car. Total Damage: $4600.
Costs to date are $500 for injunction plus Counsel’s fee and brief fee for today.
Arguments: Had to take out injunction, as D did not respond to letters or complaints.
Information to seek:
What are D’s costs today? Generally?
Costs should not simply be split unless there is a principled reason for doing so. The D generally pays costs.