Baigent - [2021] NZHC 2729

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2021-442-43

[2021] NZHC 2729

IN THE MATTER of Parts 7 and 19 of the High Court Rules 2016 and Sections 316 and 317 of the Property Law Act 2007

IN THE MATTER

of an application by PAUL NOEL BAIGENT, MARY NOEL BAIGENT and

BARBARA NOEL CAMERON for an order extinguishing easements

BETWEEN

PAUL NOEL BAIGENT, MARY NOEL BAIGENT AND BARBARA NOEL CAMERON

Applicants

Teleconference: 4 October 2021

Appearances:

A M Halloran for Applicants

Judgment:

12 October 2021

JUDGMENT OF ISAC J

Introduction

[1] This is an application to rescind a decision declining the applicants’ without notice application for orders under the Property Law Act 2007.

[2] The applicants are carrying out a subdivision of land they own adjacent to the Wai-iti River in Wakefield. An easement created in 1902 has been brought down onto the subdivided titles. The applicants applied under s 317 of the Property Law Act for an order extinguishing the easement on the basis that it is now redundant.

BAIGENT [2021] NZHC 2729 [12 October 2021]

[3] In a judgment of 21 September 2021 Simon France J declined to make the orders on a without notice basis.1 His Honour held:

I am far from persuaded that it is appropriate to not direct service on the affected property owners. There is no sound reason advanced why it has not been done other than claimed inconvenience. The evidence filed, however, lists the titles and the current owners. It is suggested there is time pressure because some sale agreements have sunset clauses. However, the timing of the matter has been in the hands of the applicants and it is not a reason to dispense with service on the beneficiaries of the easement.

[4] The Court made orders granting leave to commence the proceeding by way of originating application, dispensed with service on Tasman District Council pursuant to s 316(3) of the Act, and directed service on the registered titleholders of the “beneficiary lands”.2

The application to rescind the decision

[5] The applicants promptly filed an application to rescind Simon France J’s decision under r 7.49(1) of the High Court Rules 2016, which provides:3

7.49 Order may be varied or rescinded if shown to be wrong

(1) A party affected by an interlocutory order (whether made on a Judge’s own initiative or on an interlocutory application) or by a decision given on an interlocutory application may, instead of appealing against the order or decision, apply to the court to vary or rescind the order or decision, if that party considers that the order or decision is wrong.

[6] As Simon France J was not available to deal with the application, in a minute of 24 September 2021 he directed that another Judge should determine the application.

[7] The matter came before me as duty Judge, and I conducted a teleconference with Ms Halloran, counsel for the applicants, on 4 October 2021. The essence 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.

Continue reading Baigent

Details

AGLC: Baigent [2021] NZHC 2729
Case: [2021] NZHC 2729
Decision Date: 12 October 2021

CaseChat Overview and Summary

In this case, the applicants sought to extinguish easements on land they own adjacent to the Wai-iti River in Wakefield, New Zealand. The easements were created in 1902 and have been brought down onto the subdivided titles. The applicants applied under section 317 of the Property Law Act for an order extinguishing the easement on the basis that it is now redundant. The original decision declined to make the orders on a without notice basis, which led to the applicants' application to rescind the decision.

The legal issues the Court was required to decide were whether the original decision was wrong or based on a misunderstanding of the nature of the application and the evidence in support. The Court also had to consider whether it was appropriate to extinguish a property right without any notice to affected parties, or with substituted service, in this case. The Court found that the original decision was not wrong and that it would be extraordinary to extinguish a property right without any notice of the issue.

The Court declined the application to rescind the Court’s decision of 21 September 2021. However, the Court did make orders as to the mode of service given there are, at present, up to 45 separate parties who may be affected, and personal service in a timely manner may be very difficult. Some parties may be overseas or incapable of personal service. The Court directed that the address for service for those parties listed in exhibit D to the affidavit of Mr Jacobson of 8 September 2021 are the postal addresses listed in that exhibit. Service on them may be effected by sending the proceedings to those addresses, together with a letter advising the parties that they have 15 working days to file any opposition in the High Court. The Court also directed that the applicants take out an advertisement in the local newspaper. The form of notice should be approved by the Court.

In all other respects, the orders of Simon France J remain unchanged.

Orders