Asmussen v Hajnal - [2014] NZHC 587

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2004-442-148 [2014] NZHC 587

UNDER the Property Law Act 1952

BETWEEN

JONAS R EINHOLD ASMUSSEN Plaintiff

AND

LAZLO HAJNAL and MILA RELICH First Defendants

GLENYS ANN S CHOFIELD Second Defendant

PAUL DONALD GALLOWAY and ZAHANE RUTH GALLOWAY Third Defendants

ADRIAN HEINZ STUDER Fourth Defendant

NELSON CITY COUNCIL Fifth Defendant

On papers

Judgment:

27 March 2014

JUDGMENT OF DOBSON J

Introduction

[1] This judgment determines, for a second time, the terms on which a right of way in favour of the plaintiff’s property is to be registered over a part of the first defendants’ property.

[2] The precise form of the right of way was defined in my judgment of 8 June
2012 (the 2012 decision). The parties were unable to agree on certain issues, and a further minute was required on 28 November 2013 (the November minute). The first

ASMUSSEN v HAJNAL [2014] NZHC 587 [27 March 2014]

defendants have subsequently sought to dispute the basis for the November minute and seek to re-open argument on matters claimed to be relevant to the form of right of way that I have ordered is to be registered.

Background

[3] The plaintiff lives at 142 Cleveland Terrace, Nelson (142). The first defendants own the next door property, 136 Cleveland Terrace (136). From about
1948, the plaintiff’s property has enjoyed vehicular access along a driveway from

Cleveland Terrace across the front of 136.

[4] In his judgment of 5 August 2009, Wild J granted the plaintiff a right of way over the area of the “existing driveway” that crosses the first defendants’ land. This right was conditional on the plaintiff obtaining the permission of the Nelson City Council (the Council) pursuant to s 348(1) Local Government Act 1974. Wild J set compensation to the first defendants at $35,000.

[5] In order to effect the terms of Wild J’s judgment, it was necessary to determine the area that constituted the “existing driveway” as at 6 August 2009. The submissions of the parties and accompanying affidavits and exhibits contemplated four possible areas. In the 2012 decision, I ordered that:

(a) the right of way be that based on the Cotton & Light plan (width of

2.55 metres);

(b) a condition of the easement was that the first defendants and their successors in title did not constrain the passage of vehicles by placing obstructions on either boundary of the right of way;

(c) the solicitors for the plaintiff instruct a surveyor to complete a plan for the right of way;

(d) the plaintiff obtain any necessary local authority consents to registration of the right of way prior to presenting the necessary documents to the first defendants for signature;

(e) the Registrar of the High Court be authorised to sign documentation in the place of the first defendants, if the first defendants refused to sign the documents required for the right of way to be registered over the first defendants’ certificate of title.

[6] The plaintiff undertook the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Asmussen v Hajnal

Details

AGLC: Asmussen v Hajnal [2014] NZHC 587
Case: [2014] NZHC 587
Decision Date: 27 March 2014

CaseChat Overview and Summary

Jonas Asmussen, the plaintiff, sought to establish a right of way over a part of the property owned by Lazlo Hajnal and Mila Relich, the first defendants. The property in question is located at 136 Cleveland Terrace, Nelson. The dispute originated from the plaintiff's long-standing vehicular access to his property at 142 Cleveland Terrace, which had been granted via a driveway across the first defendants' land. The matter has previously been determined by Wild J, who ordered that the plaintiff obtain permission from the Nelson City Council under the Local Government Act 1974 and subsequently registered the right of way. The first defendants refused to sign the necessary documentation for the registration due to a dispute over the extent of their verandah overhanging the driveway. The court was required to determine whether the overhang necessitated a re-alignment of the right of way and whether the plaintiff's process for obtaining council permission was valid.

The court found that the overhang of the verandah was not substantial enough to require a re-alignment of the right of way. The court also determined that the plaintiff's process for obtaining council permission was valid, and the first defendants' refusal to sign the documentation was based on an attempt to delay the registration of the right of way. The court further held that the first defendants' objections to the easement certificate were not valid, as they had not been raised during the previous hearings. The court confirmed the provision that if the first defendants continued to refuse to sign the documents, the Registrar would be directed to sign the documents on their behalf to enable registration of the right of way to proceed.

The court ordered that the right of way be registered over the first defendants' property in accordance with the terms previously ordered. The court also directed the Registrar to sign the necessary documents on behalf of the first defendants if they continued to refuse to sign them. The court emphasised the importance of resolving the matter to avoid further delays and disputes between the parties.

Orders