B A Trustees Ltd v Druskovich - [2007] NZCA 131

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA142/05 [2007] NZCA 131

BETWEEN B A TRUSTEES LIMITED Appellant

ANDIVAN DRUSKOVICH VESNA DRUSKOVICH Respondents

Hearing: 28 June 2006
Court: William Young P, Chambers and Arnold JJ Counsel: A C Sorrell and W F Wright for Appellant
J McCartney for Respondents

Judgment: 17 April 2007 at 3 pm

JUDGMENT OF THE COURT

A Leave to adduce the further evidence referred to in [52] is granted. B The appeal is allowed in part.
CIn place of the order made in the High Court granting the respondents an easement, an order is made that there be an easement over the appellant’s land in favour of the first floor apartment on Lot 2 on DP22812 (“the first floor apartment”) upon the following terms:

(1) The easement will terminate on the earlier of:

B A TRUSTEES LIMITED V IVAN DRUSKOVICH AND ANOR CA CA142/05 17 April 2007

(a)One year after the date on which the existing lease between the respondents and Grey Lynn Amcal Pharmacy Limited dated 4 June 2004 terminates; or

(b) 30 September 2019;

(2) The easement is not available for the benefit of Grey Lynn Amcal

Pharmacy Limited or any assignee;

(3) In all other respects, the easement is on the terms fixed in the

High Court;

(4)Any dispute about the terms of the easement, whether in terms of s 129B(8)-(11) of the Property Law Act 1952 or otherwise, must be resolved in the High Court; and

(5)Pending completion of easement formalities, the respondents and any lessee of the first floor apartment and the invitees and licensees of any of them may use the right-of-way to the first floor apartment on the terms hereof.

DThe order for compensation made in the High Court is set aside. The question of compensation is remitted to the High Court for redetermination in light of the more qualified easement now granted to the respondents.

E There is no order as to costs in this Court.

REASONS OF THE COURT

(Given by Arnold J)

Table of Contents

Para No

Introduction  [1] Background   [5] Section 129B of the Property Law Act  [13] Jurisdiction   [20] Is the apartment a “piece of land”?  [21]
Was the apartment an authorised use?  [35] Relief  [44] Should relief have been granted?  [46]
What type of relief?  [59] Compensation  [68] Costs  [72] Decision  [76]

Introduction

[1] The appellant owns a block of land (Lot 1) which is adjacent to two blocks of land (Lots 2 and 3) owned by the respondents. There is a right-of-way across Lot 1 to Lot 3. The right-of-way runs alongside the boundary of Lot 2. As a matter of law, the right-of-way is for the benefit of Lot 3. As a matter of fact, however, it has been used for many years by the occupants of Lot 2 as well.

[2] The appellant began the construction of a fence which would have prevented access from the right-of-way to Lot…

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: [2007] NZCA 131
Decision Date: 17 April 2007

CaseChat Overview and Summary

In B A Trustees Limited v Druskovich, the Court of Appeal considered whether an apartment on the upper floor of a building could be considered a "piece of land" for the purposes of s 129B of the Property Law Act 1952. The Court held that the apartment could be considered a "piece of land" if it was a distinct and separate whole, such as by having a separate certificate of title. In this case, the apartment was a distinct and separate whole, and there was no reason why it should not be regarded as a "piece of land" for the purposes of s 129B. The Court also considered whether the apartment was an authorised use. The Judge found that the apartment was an authorised use, and the Court saw no basis for interfering with that finding. Finally, the Court considered the type of relief granted by the Judge. The Court held that the Judge was entitled to conclude that this was an appropriate case for relief and that the Judge turned his mind to the factors identified in s 129B(6). The Court varied the relief granted by the Judge, limiting the duration and scope of the easement. The Court set aside the order for compensation made in the High Court and remitted the question of compensation to the High Court for redetermination in light of the more qualified easement now granted to the respondents. The Court made no award of costs.

Orders