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7.49     Order may be varied or rescinded if shown to be wrong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 her client’s application is that Simon France J declined the application on a “fundamentally wrong premise”. That was because the judgement recorded that the “easement is no longer of practical effect because the Wai-iti River has moved

1      In Re Baigent [2021] NZHC 2478 at [6].

2      At [7(a)-(c)].

3      The application was filed on 23 September 2021.

rendering right of way using the easement impractical”4 (emphasis added). The applicants submit that is not correct. They say, in fact, it is now impossible for any benefiting landowners to use the easement, and accordingly the easement is “redundant”. It is that redundancy, they say, that lies at the heart of the application.

[8]                 In support of the application to rescind, counsel referred the Court to three further decisions dealing with the extinguishment of easements on a without notice basis.5

Discussion

[9]                 I am not satisfied that the decision is wrong, or was based on a misunderstanding of the nature of the application, or the evidence in support.

[10]             It is clear on the face of the judgment that the Judge was aware of the evidence for the applicants that the easement was redundant. And describing the easement as “no longer of practical effect”, as the Judge described it, as opposed to “redundant”, as the application to rescind asserts, is a distinction without substance in my view.

[11]             There is an added difficulty for the applicant. Section 316 of the Property Law Act provides:

316     Application for order under section 317

(1)A person bound by an easement, a positive covenant, or a restrictive covenant (including a covenant expressed or implied in an easement) may make an application to a court for an order under section 317 modifying or extinguishing that easement or covenant.

(2)That application may be made in a proceeding brought by that person for the purpose, or in a proceeding brought by any person in relation to, or in relation to land burdened by, that easement or covenant.

(3)That application must be served on the territorial authority in accordance with the relevant rules of court, unless the court directs otherwise on an application for the purpose, and must be served on

4      In Re Baigent, above n 1, at [2(b)].

5      In Re Horncastle Homes Ltd [2015] NZHC 987; In Re Stoke Valley Holdings Ltd and Solitaire Investments Ltd [2020] NZHC 430; RCL Henley Downs Ltd v Hanson & Ors [2018] NZHC 2714. At the time the application came before Simon France J, two authorities were relied on by the applicants to support their case: Re Spring Grove Ltd [2016] NZHC 2109, and Re Yoursection Ltd [2019] NZHC 1825.

any other persons, and in any manner, the court directs on an application for the purpose

[12]             Of relevance is subs (3). Service is mandatory for both the territorial authority, and “any other persons” the Court directs. While the Court has a power to dispense with service on a territorial authority, there is no similar proviso in relation to service on “any other persons”. While it could be argued that Parliament intended that service will only be effected on those “the court directs on an application for the purpose”, the corollary is that there must be an application for service, or at least for directions as to service. That has not occurred in the current case.

[13]             Service of proceedings is a fundamental requirement of the right to be heard. I agree with the Judge that it would be extraordinary to extinguish a property right — even one which is ostensibly redundant — without any notice of the issue. And while in appropriate cases it may be that practicality favours proceeding without notice to affected parties, or with substituted service, I am not satisfied this case is one of them.

[14]             Accordingly, I decline the application  to  rescind  the  Court’s  decision  of 21 September 2021.

Conclusion and further orders

[15]             Ms Halloran submitted, as a fallback position, that if the Court was not minded to rescind the order and grant the application without notice, that it might 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.

[16]             Pursuant to r 6.1(c) of the High Court Rules 2016, I direct 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.

[17]             I also direct that the applicants take out an advertisement in the local newspaper. The form of notice should be approved by the Court.

[18]In all other respects the orders of Simon France J remain unchanged.

Isac J

Solicitors:

Pitt & Moore, Nelson for Applicants