Boyer v McCracken - [2024] NZHC 571

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-800

[2024] NZHC 571

BETWEEN ARTHUR JAMES BOYER AND NICOLE RUTH KRAMER
Plaintiffs

AND

CLARE MCCRACKEN

Defendant

Hearing:
12 February 2024

13 February 2024 additional reply submissions by plaintiffs

Counsel:

R J Hollyman KC and A J Peat for Plaintiffs S A Grant for Defendant

Judgment:

19 March 2024

JUDGMENT OF HINTON J

This judgment was delivered by me on 19 March 2024 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: McEntee, Auckland
Douglas M A Burgess, Auckland

BOYER & anor v MCCRACKEN [2024] NZHC 571 [19 March 2024]

[1] Given this case is over a very small strip of land, it is surprising how much airtime has been devoted to it. Six years after I issued a judgment on 20 April 2017,1 the defendant has applied for a ruling as to interpretation of part of cl 1 of the sealed orders, themselves made long after the judgment. The plaintiffs have responded by seeking a stay on the basis that the Court does not have jurisdiction to hear the application.

[2] Originally both applications were set down before me for hearing on 12 February 2024. However, by minute dated 6 December 2023, La Hood J directed that the hearing be limited to resolving the application for stay and protest to jurisdiction.2

Background

[3] The April 2017 judgment addressed an application by the plaintiffs for orders under ss 321–325 of the Property Law Act 2007 vesting an area of land belonging to the defendant in them, relying on a path as a “wrongly-placed structure”.

[4] In the judgment I recorded that the defendant had also sought ancillary orders amending the existing cross-leases.3 As the orders fell outside the strict ambit of the proceeding but the plaintiffs had indicated they were amenable to them, I indicated my intention to make the orders proposed but asked the parties to confirm the form of the orders.4 Unfortunately agreement was unable to be reached and the April 2017 judgment remained unsealed. An issue arose as to the implementation of this aspect of the judgment. In particular there was an issue between the parties as to the form of the plan lodged with Land Information New Zealand (LINZ).

[5] In a substantive minute issued on 24 March 2020, following a further hearing, I addressed the form of the orders the plaintiffs proposed to seal.5

1      Boyer v McCracken [2017] NZHC 755, (2017) 18 NZCPR 671.
2      Boyer v McCracken HC Auckland CIV-2015-404-800, 6 December 2023.
3      Boyer v McCracken, above n 1, at [96].
4 At [96].
5      Boyer v McCracken HC Auckland CIV-2015-404-800, 24 March 2020.

[6] I concluded that, in the absence of proper pleadings (or consent), it was not appropriate for the plaintiffs to present for sealing a formal judgment containing the following proposed order:6
(a)The restrictive covenant boundary between the plaintiffs’ exclusive use…

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 Boyer v McCracken

Details

AGLC: Boyer v McCracken [2024] NZHC 571
Case: [2024] NZHC 571
Decision Date: 19 March 2024

CaseChat Overview and Summary

Arthur James Boyer and Nicole Ruth Kramer filed a suit against Clare McCracken, seeking orders under sections 321–325 of the Property Law Act 2007 to vest a strip of land belonging to the defendant in them, based on a path they considered to be a wrongly-placed structure. The case was heard over several sessions, and the court issued a judgment in April 2017, which was subsequently sealed on 2 August 2023. However, disputes arose regarding the implementation of the judgment, particularly the form of the plan to be lodged with Land Information New Zealand (LINZ). The defendant later filed a counterclaim in arbitration, raising issues including trespass and maintenance of a wall built on her property. The central issue in the present application was the interpretation of a clause in the sealed orders concerning the boundary line between the parties' properties. The plaintiffs argued that the court lacked jurisdiction to hear the defendant's application for interpretation, as the matter had already been submitted to arbitration.

The court had to decide whether it had jurisdiction to interpret the sealed orders and, if not, whether a stay should be granted on the defendant's application. The legal issues included whether the dispute had been submitted to arbitration and, if so, whether the court should stay the proceedings under rule 7.80 of the High Court Rules 2016. The court also considered whether the defendant's counterclaim in the arbitration was equivalent to an agreement to arbitrate the boundary line issue.

The court found that the issue of the boundary line had indeed been submitted to arbitration, as the arbitrators would need to determine the location of the boundary to resolve the defendant's counterclaim. Therefore, under rule 7.80(2), the court must stay the proceeding. The court also rejected arguments that the arbitration clause did not cover the boundary line issue and that staying the proceeding would lead to procedural inefficiencies. The court concluded that the plaintiffs were entitled to costs and ordered the proceeding to be stayed in accordance with rule 7.80(2) of the High Court Rules 2016.

Orders