Bourke v Guo - [2016] NZHC 2932

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2016-404-1527 [2016] NZHC 2932

BETWEEN
GARY EDWARD BOURKE AND

BENJAMIN WILLIAM MCALPINE TOTHILL

Applicants

AND

QINGYAN GUO Respondent

Hearing:
25 May 2016, 7 July 2016

Additional memoranda filed 13 & 14 July 2016
15 July 2016

Counsel:

W J Hamilton for Applicants
D K Wilson for Respondent

Minute:

6 December 2016

JUDGMENT OF DUFFY J

This judgment was delivered by me on 6 December 2016 at 11.30 am pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

Solicitors / Counsel: Loo & Koo, Auckland
Duncan Cotterill, Christchurch
D K Wilson, Auckland

BOURKE & TOTHILL v GUO [2016] NZHC 2932 [6 December 2016]

[1] This judgment should be read together with the judgment I delivered in Guo v

Bourke (Guo v Bourke (No 1)).1

[2] Mr Bourke and Mr Tothill (the applicants) are the owners of the property at

131 Mountain Road, Epsom. Ms Guo is the owner of the adjacent property, which is situated at 129 Mountain Road, Epsom. There are two right of way easements on the driveway and adjacent strips of land that serve those properties. They are right of way A and right of way B. The latter is the subject of this proceeding. The applicants seek the removal of impediments which they contend interfere with their use of right of way B.2

[3] Right of way B is the same right of way that features in Guo v Bourke (No

1) .3 The present application was heard at the same time.

[4] The parties have found themselves in court because Ms Guo brought an originating application seeking orders requiring the removal of a set of dual opening gates which Mr Bourke had erected across the upper part of the driveway, and accordingly blocking the two right of ways that service the two properties.

[5] The factual background concerning the establishment of right of way B and the extent to which there are now impediments on right of way B is set out in Guo v Bourke (No 1). Those impediments include:

(a) the block wall that serves as a boundary fence but which presently occupies a portion of the respondent’s property and which partly intrudes on right of way B; and

(b) vegetation growing on right of way B, in particular a large palm tree.

[6] There is common acceptance that the impediments intrude more than 50%

into the legal scope of right of way B. However, they do not intrude on the actual

1      Guo v Bourke [2016] NZHC 2240.
2      With right of way B, the servient tenement is lot 2 (Ms Guo’s property) and the dominant tenement is lot 1 (the applicants’ property).
3      I dismissed Ms Guo’s application.

formed driveway. Accordingly, they do not physically interfere with the applicants’

present ability to access their property using the driveway.

[7] The applicants brought their application out of concern that if the gates they had erected across the…

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 Bourke v Guo

Details

AGLC: Bourke v Guo [2016] NZHC 2932
Case: [2016] NZHC 2932
Decision Date: 6 December 2016

CaseChat Overview and Summary

In Bourke v Guo, the applicants, Mr Bourke and Mr Tothill, sought the removal of impediments on a right of way easement (right of way B) that serves their property. The respondents, Ms Guo, is the owner of the adjacent property and the easement. The applicants contended that the impediments, including a block wall and vegetation, interfered with their use of the easement. The applicants brought the application out of concern that if the gates they had erected across the driveway were ordered to be removed, then their ability to access and to fence off their property would need to be revisited. Ms Guo opposed the application and appealed the previous decision in Guo v Bourke (No 1). The court had to decide whether the impediments on right of way B constituted a substantial interference with the applicants' right to utilise the easement. The court found that the intrusion of the impediments on the easement took up at least 50 per cent of the width of the easement and for the most part this intrusion ran along the length of the easement. The court considered that such intrusion was well beyond what is tolerable and reasonable and constituted a substantial interference with the applicants' right to utilise right of way B. The court found that the applicants were entitled to the orders sought in their application.
Ms Guo was ordered to remove all impediments to the right of way easement designated 'B' on the Certificate of Title and referred to in Easement Certificate 375233.2 including all block walls, rock walls and other vegetation. Ms Guo was also ordered to remove or relocate the portion of the block wall that encroaches on the applicants' land in the western boundary of Ms Guo's property. Leave was reserved to the parties to file memoranda as to costs.

Orders