Asmussen v Hajnal

[2012] NZHC 1267

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2004-442-148 [2012] NZHC 1267

UNDER  the Property Law Act 1952

BETWEEN  JONAS REINHOLD ASMUSSEN Plaintiff

ANDLASZLO HAJNAL AND MILA RELICH First Defendants

ANDGLENYS ANN SCHOFIELD Second Defendant

ANDPAUL DONALD GALLOWAY AND ZAHANE RUTH GALLOWAY

Third Defendants

ANDADRIAN HEINZ STUDER Fourth Defendant

ANDNELSON CITY COUNCIL Fifth Defendant

On papers

Judgment:      8 June 2012

JUDGMENT OF DOBSON J

[1]      Consequent upon my Minute of 22 March 2012 in these proceedings, the plaintiff  has  filed  submissions  dated  30 April  2012,  and  in  response  to  them Mr Hajnal has filed a further (second) affidavit apparently sworn in Australia on

23 April 2012, together with a synopsis of argument on behalf of the first defendants, dated 7 May 2012.  In response to those submissions, solicitors for the plaintiff have

filed a further memorandum in reply dated 11 May 2012.

ASMUSSEN v HAJNAL AND RELICH HC NEL CIV-2004-442-148 [8 June 2012]

[2]      The remaining issue in the proceedings is to define the terms on which the plaintiff is entitled to have a right of way registered over part of the adjoining property owned by the first defendants.  The issue is confined to the application of the order to that effect made by Wild J in his judgment of 6 August 2009.  There is no scope for amending or updating what was intended by that judgment, in the present context.

[3]      The  plaintiff  has  been  out  of  New Zealand  and,  in  those  circumstances, solicitors on his behalf (and with his explicit authority) have advanced the present issue   in   reliance   on   affidavits   completed   by   counsel’s   personal   assistant, Janice Winter, and Craig Morice, a solicitor employed within the firm acting for the plaintiff.

[4]      The first defendants object to those affidavits as inadmissible by virtue of the connection between the deponents and the solicitors acting for the plaintiff, when they address what the first defendants consider to be contentious matters.

[5]      On  this  and  other  aspects  of  the  issue,  proportionality  must  dictate  the outcome.   In circumstances where obtaining a further affidavit from the plaintiff would be at least unwieldy, and where the cost of retaining independent persons qualified to address (again) the factual matters would be disproportionate, the plaintiff’s solicitors have resorted to an expedient alternative.   I determine those affidavits to be admissible, and the differences between the parties on matters of fact that may be relevant to a further order from the Court are sufficiently defined by consideration of those affidavits, and that from Mr Hajnal in response to them.

[6]      Among the options raised on behalf of the plaintiff for resolving the present issue is an invitation for a Judge to attend at the property and physically delineate the boundaries of the right of way by placing survey pegs in on the property.  That is antithetical to the point repeated by Wild J in his judgment of 6 August 2009 that, even at that point in the dispute, the Court was ill-equipped to deal with a proceeding like this which festers on and escalates.  The Court is charged with hearing cases,

deciding them and moving on.[1]

[1] At [25].

[7]      I am satisfied that a proportionate response to the requirements of the parties does not warrant convening any further hearing.

[8]      At [66] of his decision, Wild J granted a foot and vehicular right of way over the  area  of  the  “existing  driveway”  that  crosses  the  first  defendants’ land.    In effecting the terms of Wild J’s judgment, it is necessary to determine the area that constituted the “existing driveway” as at 6 August 2009.

[9]      The submissions of the parties and accompanying affidavits and exhibits

contemplate four possible areas as constituting the “existing driveway”.

The Planscapes plan

[10]     The  first  is  the  designated  area  in  the  Planscapes  plan,  prepared  at  the direction of the plaintiff.  The proposed right of way according to this plan largely reflects the area that the plaintiff asserts is currently being used for access to his property.  It is delineated as the widest set of boundaries on the plan in exhibit K to Mr Hajnal’s 23 April 2012 affidavit.  This shows that the proposed right of way is larger than the driveway identified by the Cotton and Light survey dated October

2000, as considered during the substantive hearing.

[11]     The plaintiff recognises that the Planscapes plan extends the right of way’s northern boundary slightly outside the edge of the driveway, and incorporates an existing, triangular-shaped legal right of way.  In a letter dated 19 February 2010 to the Nelson City Council, the plaintiff consents to “the Plan being amended to accurately reflect the Northern extremity of the existing drive formation”.  However, the plaintiff submits that the extent to which the proposed right of way exceeds the size of the current driveway is de minimus in effect, and is not prejudicial to the first defendants.   The plaintiff contends this to be the appropriate area of “existing driveway”  as  it  was  approved  by the  Nelson  City Council  in  a  decision  dated

18 March 2011.

[12]     The first  defendants  submit  that  the right  of way should  not  be  granted according to the Planscapes plan, as this is a substantially greater area than the

“existing driveway”, at one point extending to 5.2 metres in width.  The extension of the driveway to this extent would, it is submitted, prejudice the first defendants’ interests, as it may cause subsidence of the land in the vicinity of an already crumbling bank. Additionally, the first defendants submit a right of way in this form would reduce the permitted building platform for their land.

[13]     I am not satisfied that the Planscapes plan reflects the “existing driveway” at

the time the right of way was ordered to be registered.

[14]     Part of the expansion of the area sought to be obtained under the right of way in the Planscapes plan deals with an area for parking or turning at the top of the driveway.  In the present dispute, relieving a land-locked property under s 129B of the Property Law Act 1952 did not extend beyond affording vehicular access.

[15]     The plaintiff is therefore not entitled to register a right of way over the total area proposed in that plan.

Right of way of 2,250 millimetres in width

[16]     Mr Hajnal   proposes   a   right   of   way   of   uniform   width,   preferably

2,250 millimetres.  This measurement is based on the width of the driveway where the sealed Council road reserve meets the boundary of the first defendants’ property. The first defendants submit that as vehicles can comfortably pass through the driveway’s narrowest point, this width should suffice for the entire right of way.

[17]     The parties dispute the width of the driveway at this particular point.   The first defendants contend it to be 2,250 millimetres.  The plaintiff contends it to be

2.8 metres, despite the Council plans recording it as 2,590 millimetres.  The plaintiff accounts  for  this  discrepancy  of  21 millimetres  as  due  to  the  weed  growth immediately next to the personnel fence.  The plaintiff has photographic evidence to support his measurement of 2.8 metres, which the first defendants say is erroneous due to the measurement being taken as from the personnel fence rather than being limited to the sealed driveway.

[18]     The plaintiff opposes a right of way with a width of 2,250 millimetres, as it would not provide reasonable vehicular access.  Relying on the standard width of a vehicle being 1,970 millimetres, the plaintiff states that such access would require an area wider than the wheels and body of a car.  Moreover, the plaintiff’s photographic evidence    shows    the    width    of    the    existing    gravel    driveway    exceeding

2,250 millimetres at various points.

Cotton and Light report

[19]     An existing driveway was identified in a plan prepared by surveyors, Cotton and Light, in October 2000.  This plan was prepared for the hearing before Wild J, as the area representing the informal right of way in favour of the plaintiff, as had been used as such for a number of years. As is evident in exhibit K to Mr Hajnal’s second affidavit, this right of way is marginally narrower than 2,250 millimetres in parts, and wider than 2,250 millimetres in parts, in particular at the end of the driveway on the northern border.   Neither party advocates this as their preferred right of way, although it is closest to the first defendants’ proposed width.

[20]     The plaintiff rejects the Cotton and Light report as representing the correct right of way.

[21]     It is inappropriate for the plaintiff to reject the Cotton & Light plan as being outdated when the “existing driveway” in contemplation at the time of the judgment of Wild J was the driveway that had been in existence for up to 60 years.  To the extent that the plaintiff wishes to take advantage of any informal expansion of the area used as part of the driveway since issues were joined in the litigation, that would be going beyond the relief ordered in the context in which the plaintiff’s claims were argued.

Right of way of uniform width

[22]     The fourth option is a right of way of a width not already proposed by either party.  The plaintiff ’s alternative submission is that the area on the Planscapes plan should be narrowed to reflect the aggregate of the wheel marks on the driveway and

a stipulated distance on either side to allow for obvious protrusions.  The plaintiff states that if the Court opts for this solution, it ought to attend the site with a tape measure and place pegs at what it considers are the appropriate dimensions for the ordered right of way.   I have commented above on the inappropriateness of that course.

[23]     As  to  the  appropriate  width  of  the  right  of way,  it  is  also  relevant  that references to “the existing driveway” cannot reasonably be confined to the line of gravel tracks reflecting the path generally followed by the wheels of vehicles using the right of way.  It must reasonably be implied that a margin exists on both sides of those tracks, to enable the safe manoeuvring of vehicles using the right of way. On-going use of a driveway wider than those tracks can reasonably be inferred in the absence of any constraint that would prevent minor variations on the ground covered by vehicles using the driveway.

[24]     The first defendants propose the “90 percentile” yardstick for vehicle width of 1.729 metres, as used in appendix 12 of the Nelson Resource Management Plan. This also requires a minimum clearance of 300 millimetres either side of that vehicle width for easements of this nature.  On this basis, the first defendants offered a right of way with a width of 2,329 millimetres.  This was refused by the plaintiff as it did not reflect the width of what he considered to be the “existing driveway”, as shown by his photographic evidence.

[25]     In reliance on the assurance of the first defendants that no obstruction would be caused to the reasonable use of the driveway, I order that the scope of right of way to which the plaintiff is entitled is that based on the Cotton & Light plan, and having a width of 2.55 metres.  I take that from the optimal width of usual road vehicles at

1.95 metres, plus an allowance of 300 millimetres on each side of such a vehicle. The centre line of that right of way is to be taken as the centre line of the right of way as represented in the Cotton and Light plan.

[26]     Accordingly,  I  order  that  the  easement  to  be  registered  over  the  first defendants’ property in favour of the property of the plaintiff is as defined in [25] above.   It is to be a condition of that easement that the first defendants and their

successors in title not constrain the passage of vehicles by placing obstructions on either boundary of the right of way.

[27]     The solicitors for the plaintiff are to be responsible for instructing a surveyor to complete a plan for the right of way that complies precisely with the description for it as specified above.  The surveyor retained is to be provided with a copy of the Code of Conduct for experts engaged in litigation in the High Court, as specified in the fourth schedule to the High Court Rules.  The surveyor is to undertake the task of preparing the new plan on terms that the surveyor is, on completion of the plan, to endorse on it the acknowledgement of the responsibilities as an expert retained to assist the Court, and to certify that the plan as produced conforms precisely with the directions given in this judgment.   The surveyor is to be retained as an expert on these terms at the cost of the plaintiff.

[28]    The plaintiff is also to obtain any necessary local authority consents to registration of the right of way on these terms, prior to presenting documents to the first defendants for signature.  I do not anticipate that there will be any difficulty in obtaining  such  consent,  and  note  that  the  consent  of  the  local  authority  to  a somewhat large extent of right of way cannot be influential in defining with greater precision the “existing driveway” referred to in Wild J’s judgment.

[29]     The documents to be presented to the first defendants for execution are also to include certification by the surveyor completing the new plan, confirming the surveyor’s acceptance of responsibility as an expert in terms of the High Court Rules, and that the plan as prepared complies with the definition of the right of way as specified in this judgment.   In default of the first defendants executing the documents necessary to register this easement within 10 days of such documents being presented to them, the Registrar of this Court is hereby authorised to complete such documents instead of the first defendants.

[30]     I urge the parties to deal with the mechanics of this last aspect of their unhappy saga as objectively as they possibly can.

Costs

[31]     Both   parties  wished   the  issue  of  costs   to  be  deferred   for  separate consideration.  I am loathe to prolong these proceedings any further.  My provisional view is that the plaintiff is entitled to a modest award of costs for this latest round in the proceedings.   The extent of costs needs to have regard to the plaintiff having unsuccessfully sought orders from the Court for the extent of a driveway that I consider to be beyond that clearly contemplated by the term “existing driveway” as used in the judgment of Wild J.  Notwithstanding that, the first defendants have been obstructive  of  resolution  to  an  extent  that  warranted  pursuit  of  the  present application.  Technical points as to the form in which the issue has been referred to the Court do not avail the first defendants.

[32]     The parties are urged to resolve outstanding costs issues consistently with the indication in [31] above.  If necessary, I will receive memoranda.

Dobson J

Solicitors:

Rout Milner Fitchett, Nelson for plaintiff

Smythes, Nelson for first defendants