BA Trustees Limited v Ma'a Limited - [2014] NZHC 935

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4045 [2014] NZHC 935

BETWEEN
BA TRUSTEES LIMITED AND FUEGO

LIMITED Plaintiffs

AND

MA'A LIMITED AND JOHN MAALAULI VAIGAFA

First Defendants

IVAN DRUSKOVICH AND VESNA DRUSKOVICH

Second Defendants

AUCKLAND COUNCIL Third Defendant

Hearing: 3 March and 26 March 2014

Appearances:

A C Sorrell for the Plaintiffs
No appearance by or on behalf of the First Defendants
I Druskovich in person (on 3 March 2014)

J Foster for Second Defendants (on 26 March 2014) J Hilario for the Third Defendant

Judgment:

26 May 2014

JUDGMENT OF BROWN J

This judgment was delivered by me on 26 May 2014 at 1 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Paddy Orr & Co, New Lynn, Auckland
Rainey Collins Wright, Auckland

Counsel: A Sorrell, Auckland
J P Schlooz, Epsom, Auckland

BA TRUSTEES LTD v MA'A LTD [2014] NZHC 935 [26 May 2014]

Introduction

[1] The plaintiffs (“BA Trustees” and “Fuego”) each own properties adjacent to a property owned by the second defendants (“the Druskovichs”). A building in the nature of a garage is located on the Druskovichs’ property. It encroaches on both the plaintiffs’ properties, albeit in the case of the BA Trustees property that encroachment is on land over which there is a right of way in favour of the Druskovichs’ property.

[2] The plaintiffs originally sought three distinct orders:

(a) The removal of those parts of the garage which encroach on the right- of-way and on the Fuego property;

(b)The removal of the garage in its entirety on the ground that it is in breach of the third condition of the grant of the right of way in that it has a frontage wholly on the right of way; and

(c) A modification of the easement granting the right of way.

[3] For reasons which are explained below the only issue of substance which now requires determination relates to the second of those matters. Instead of injunctive relief a declaration is now sought.

The manner in which the hearing evolved

[4] The first defendants, who were tenants who had previously occupied the property, filed a statement of defence dated 22 October 2013. Because that defence did not contain any denials of the allegations in the statement of claim, it was effectively an admission by virtue of r 5.48(3). The first defendants did not appear at the hearing.

[5] No relief is sought against the third defendant (“the Auckland Council”). By memorandum dated 18 February 2014 the Auckland Council sought to be excused

from appearing at the hearing. However at my request Mr Hilario appeared for the purpose of addressing the second order sought.

[6] The Druskovichs did not file a statement of defence. Consequently the proceeding was set down for formal proof under r 15.9. However, when the matter was called on 3 March 2014 Mr Druskovich appeared, unassisted by counsel, and sought to be heard. He claimed to be under the impression that the purpose of…

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.

Keep reading for free

Create a free CaseChat account to read BA Trustees Limited v Ma'a Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZHC 935
Decision Date: 26 May 2014

CaseChat Overview and Summary

The High Court of New Zealand considered a dispute between BA Trustees Limited and Fuego Limited, who own adjacent properties, and Ma'a Limited and Ivan Druskovich and Vesna Druskovich, who own a property with a garage that encroaches on both BA Trustees and Fuego's properties. The primary issue was whether the garage had a frontage wholly on the right of way, thus breaching a condition of the easement. The court had to determine if the garage was a "building" under the condition, and whether the condition should be modified or deleted. The Auckland Council, which was not actively involved in the case, indicated it did not enforce such frontage conditions anymore as they were considered anachronistic. The court concluded that the garage did have a frontage wholly on the right of way and was a "building" under the condition. However, considering the long-standing existence of the garage without objection, the court modified the condition to exempt the existing garage from the prohibition on erecting buildings with a frontage wholly on the right of way. The court also modified the terms of the right of way easement to restrict its use.

Orders