Austin v Rentrezi 2 Ltd

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-000070

[2021] NZHC 1027

BETWEEN

NORMAN CLIVE AUSTIN and MARGARET IRENE AUSTIN
Plaintiffs

AND

RENTREZI 2 LIMITED

First Defendant

PRAGMA DESIGNER HOMES LIMITED
Second Defendant

AHL RENTALS LIMITED

Third Defendant

Hearing:

19 – 23 April 2021

Appearances:

V A Whitfield for Plaintiffs

T M Braun and U B Keller for First and Second Defendants No appearance by or for the Third Defendant

Judgment:

10 May 2021

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 10 May 2021 at 12.00 noon

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

O’Sheas Barristers & Solicitors, Hamilton/V Whitfield, Cambridge Braun Bond & Lomas Ltd, Hamilton

AUSTIN v RENTREZI 2 LIMITED [2021] NZHC 1027 [10 May 2021]

Introduction

[1]    The plaintiffs, Norman and Margaret Austin, are the owners of a property located at 21 Hillary Street, Chedworth, Hamilton. Their property is accessed by a right of way.

[2]    The right of way is likely to have been created sometime in 1974 or perhaps 1975. Initially it provided access to two other lots as well. In 2006, these two lots were subdivided and two new lots were created. The largest of the new lots was ultimately purchased by the first defendant, Rentrezi 2 Ltd (“Rentrezi”).

[3]    Rentrezi has built four residential units on part of the lot it purchased. The construction works were carried out by the second defendant, Pragma Designer Homes Ltd (“Pragma”). The lot has been further subdivided and separate titles have issued for each of the new units and for the balance of the land. Rentrezi transferred the titles with the new units on them to Pragma, which in turn sold them to the third defendant, AHL Rentals Ltd (“AHL”). AHL retains the properties and the units are rented out to tenants. The tenants are using the right of way to access the units.

[4]    In broad terms, these proceedings concern the use made of the right of way by Rentrezi and Pragma when the units were being built and the use being made of the right of way by AHL’s tenants now that the units have been completed.

Background

The right of way

[5]    Hillary Street was previously a blind street terminating at the boundary of a large block of land. In 1973 this land was subdivided into a number of lots. The plan of the subdivision was deposited on 14 December 1973. It was allocated number DPS 17999. A copy of this plan is annexed – Annexure A.

[6]    Hillary Street became a formed cul de sac as a result of the subdivision. The head of the cul-de-sac was shown as lot 21 on DPS 17999. It was to vest in the Hamilton City Council as a street. DPS 17999 also showed a right of way coming off lot 21 to provide access to lots 3, 4 and 5 on the plan. Each of them,…