B a Trustees Limited v Druskovich - [2024] NZHC 2021

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2034

[2024] NZHC 2021

BETWEEN
B A TRUSTEES LIMITED

Plaintiff

AND

IVAN DRUSKOVICH and VESNA DRUSKOVICH

First Defendants

AND

MARIO BILEN and DRAGANA BILEN

Second Defendants

Hearing: 26 June 2024

Appearances:

A Barker KC for Plaintiff

Judgment:

23 July 2024

JUDGMENT OF O’GORMAN J

[Formal proof hearing]

This judgment was delivered by me on 23 July 2024 at 4 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:
A Barker KC, Auckland
Rainey Collins Wright Lawyers, Auckland

B A TRUSTEES LIMITED v DRUSKOVICH [2024] NZHC 2021 [23 July 2024]

[1] B A Trustees Ltd (B A Trustees) is the owner of land on Great North Road, Grey Lynn, Auckland (Lot 1). Lot 1 comprises a commercial building, a car parking area, and a right of way affecting two other properties. The right of way provides vehicular and pedestrian access to Lot 3 at 576 and 578 Great North Road. The property at Lot 3 is owned by the Druskoviches. It is currently leased as a dairy and a sushi shop, with a garage located at the end of the right of way.

[2] Between Lot 1 and Lot 3 is Lot 2 at 580 Great North Road. Lot 2 has a pharmacy on the ground floor and an apartment located above on the second floor. Lot 2 is also owned by the Druskoviches. Lot 2 has no rights under the right of way.

[3]The situation is shown in the following simplified diagram:

Great North Road

Part Lot 1

Lot 2

Part Lot 3

Part Lot 3

(Commercial Building)

(Pharmacy)

(Dairy)

(Sushi Shop)

Part Lot 1 (Right of Way)

Part Lot 3

Garage

Part Lot 1
(Carpark)

[4] Following years of litigation between the parties contesting the use of right of way, the plaintiff now seeks orders to “bring these disputes to an end once and for all”. In particular, it seeks: an order restraining the first defendants from using the right of way; declarations as to past actions in breach; and damages.

Procedure

[5] In advance of a case management conference scheduled for 13 February 2024, counsel for the first defendants advised that they were no longer instructed because the first defendants did not want to incur the costs of defending the proceeding any further, so it should be set down for hearing on an undefended basis.

[6] Accordingly, counsel for the first defendants were given leave to withdraw, and this hearing took place by way of formal proof. The first defendants were present in person but did not seek to participate or make submissions. The second defendants (who were the tenants of the upstairs apartment on Lot 2 and had been accessing the apartment through the right of way) did not participate, and no orders are sought against them.

[7] Under r 15.9(4) of the High Court Rules 2016, the plaintiff must, before or at…

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.

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Details

Case: [2024] NZHC 2021
Decision Date: 23 July 2024

CaseChat Overview and Summary

B A Trustees Limited, the owner of Lot 1, initiated legal proceedings against Ivan and Vesna Druskovich, and Mario and Dragana Bilen, seeking to enforce the terms of a right of way affecting their properties. The right of way provides access to Lot 3, which is owned by the Druskoviches, but not to Lot 2, also owned by the Druskoviches. The plaintiff sought declarations, injunctive relief, and damages for breaches of the right of way. The case proceeded as a formal proof hearing since the Druskoviches chose not to defend the proceeding.

The central legal issues involved the interpretation of the right of way's terms, whether ancillary rights such as parking or stopping for loading and unloading were implied, and the appropriate quantum of damages for the breaches. The court needed to determine if the right of way could be used to access Lot 2, either directly or indirectly, and if so, under what conditions. The court also had to consider whether parking or stopping on the right of way was permissible and whether damages should be awarded for the breaches.

The court examined the language of the right of way, relevant case law, and the physical circumstances of the properties. It found that the right of way did not permit access to Lot 2, and any use for that purpose constituted a trespass and nuisance. The court also concluded that no ancillary right to park or stop for loading and unloading was implied because sufficient space was available on Lot 3 itself. The court awarded general damages of $7,500 and exemplary damages of $10,000, reflecting the ongoing breaches and the deliberate nature of the Druskoviches' conduct.

The court made several orders to enforce the terms of the right of way. It declared that the Druskoviches' use of the right of way to access Lot 2 was in breach of the right of way and constituted a trespass and nuisance. It also restrained the Druskoviches from using the right of way to access Lot 2 and from parking or stopping vehicles on the right of way. Additionally, the court awarded costs to the plaintiff against the Druskoviches.

Orders