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Bilkey v Kyriak

Bilkey v Kyriak

Case [2020] NZHC 1264 9 June 2020

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-172

[2020] NZHC 1264

BETWEEN
ROBERT MACKENZIE BILKEY, LYNNETTE MARGARET BILKEY AND HAURAKI TRUSTEE SERVICES (2008) LTD

Appellants

AND

MICHAEL THOMAS KYRIAK AND CHRISTINA MOIRA JUDITH CIE

Respondents

Hearing: 27 May 2020

Appearances:

W A McCartney & N R Eilenberg for Appellants Respondents in person

Judgment:

9 June 2020

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 9 June 2020 at 2:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Duncan King Law, Auckland

BILKEY AND ANOR v KYRIAK AND ANOR [2020] NZHC 1264 [9 June 2020]

A dispute over a letterbox

[1] This appeal arises from a dispute between the owners of adjacent residential properties over the placement of a letterbox on their shared driveway created by a registered right of way easement. In a judgment delivered on 17 December 2019, Judge A P Christiansen in the District Court at Auckland found that although the registered right of way easement does not provide for the placement of a letterbox at the entrance of the driveway, the respondents are nevertheless entitled to have a letterbox sited on the appellants’ land in that position.1

[2] The appellants appeal from the judgment and seek the quashing of the orders of the District Court granting the respondents a right to have a letterbox on their land together with costs on the District Court proceeding.

[3] However, since the District Court hearing and judgment, the appellants have sold and transferred their property to an unrelated party. The new owner has agreed to grant a registerable easement over the property previously owned by the appellants, so as to enable the respondents to lawfully place their letter box on the right of way.

[4] The respondents say that now that the appellants have sold their property, the previously disputed issue of whether they were entitled to place their letterbox on the right of way access to their property is moot, and the appeal should accordingly be dismissed on that basis. The appellants argue that although they are no longer the owners of the property, their dispute with the respondents should not be considered moot, as the issue of costs in the District Court proceedings is yet to be determined.

Background

[5] The appellants were, until recently, the registered proprietors of the land and residence situated at 22 Arney Crescent in Auckland (No. 22). They settled their sale and transferred No. 22 to an unrelated purchaser on 7 February 2020.

[6] Two of the appellants, Robert and Lynette Bilkey (the Bilkeys), were previously also the owners of the adjoining land and residence situated at 22A Arney

1 Kyriak v Bilkey [2019] NZDC 25227.

Crescent (No. 22A). That property is located behind No. 22 and is accessed from the road by a shared driveway which passes over No. 22.

[7] In December 2012 the Bilkeys agreed to sell No. 22A to…

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 Bilkey v Kyriak

Details

AGLC: Bilkey v Kyriak [2020] NZHC 1264
Case: [2020] NZHC 1264
Decision Date: 9 June 2020

CaseChat Overview and Summary

The case of Bilkey v Kyriak involved a dispute between the owners of adjacent residential properties over the placement of a letterbox on their shared driveway. The respondents sought a declaration that they were entitled to place a letterbox at the entrance of the driveway, and also claimed the cost of replacing the original letterbox and pillar which had been damaged and removed. The District Court found in favour of the respondents, granting them a right to have a letterbox on the appellants’ land. The appellants appealed this decision, seeking the quashing of the orders of the District Court and the determination of costs in the District Court proceedings.

The legal issues before the court were whether the appeal should be heard despite the appellants having sold their property, and whether the court should hear the appeal on the basis of the unresolved issue of costs in the District Court proceedings. The respondents argued that the appeal should be dismissed as moot, given that the appellants no longer owned the property and the new owner had agreed to grant a registerable easement over the property for the respondents to place their letterbox. The appellants argued that the appeal should be heard, as the issue of costs in the District Court proceedings was yet to be determined and the appeal raised an important point of law.

The court considered the principles established in previous cases regarding the hearing of appeals where the live issues in dispute between the parties have ceased to exist. The court noted that appeals such as this one, which raise issues of broader public interest, may nevertheless be heard and determined by the court, despite the issue between the parties being moot. However, in this case, the court found that there was no broader public interest component, no important legal point to be raised, no suggestion of serious procedural unfairness at the first hearing, nor the identification of any other “exceptional” circumstances. The court also noted that the legal principles and prerequisite criteria applicable to the establishment of equitable easements have been recognised by the Supreme Court and applied by the High Court in previous cases.

The court accordingly dismissed the appeal, reserving the issue of costs and directing the parties to file memoranda as to costs. The court found that hearing and determining the substantive appeal would have no utility and be an inappropriate use of the court’s time and resources. The binding authorities of superior courts precluded the District Court decision from being applied as a precedent decision.

Orders