Boyer v McCracken - [2017] NZHC 755

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000800 [2017] NZHC 755

BETWEEN
ARTHUR JAMES BOYER AND

NICOLE RUTH KRAMER Plaintiffs

AND

CLARE MCCRACKEN Defendant

Hearing: 8, 9 and 10 August 2016, 28 and 29 November 2016

Appearances:

R Hollyman and G Schumacher for the Plaintiffs
S A Grant and S Laing for the Defendant

Judgment:

20 April 2017

JUDGMENT OF HINTON J

This judgment was delivered by me on 20 April 2017 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

……………………………………………………………………
Registrar/Deputy Registrar

Counsel:
R Hollyman, Barrister, Auckland
Gretta Schumacher, Barrister, Auckland
S A Grant, Barrister, Auckland
S Laing, Barrister, Auckland

BOYER v MCCRACKEN [2017] NZHC 755 [20 April 2017]

[1] The plaintiffs are seeking orders effectively vesting 11m2 of their adjoining neighbour’s land in them, relying on a path as a “wrongly-placed structure” under ss 321-325 (or Part 6, Subpart 2) of the Property Law Act 2007 (the Act).

[2] The defendant says this is not a case of a wrongly placed structure, but rather of a negligent purchaser. She says the application does not qualify under s 323 and, if it does, I should refuse relief.

Facts

[3] The plaintiffs purchased their property at 31 Springfield Road, Western Springs (Flat 1) in 2012. It is situated on a cross-lease. The purchase did not go unconditional until late 2012.

[4] The other property on the cross-lease, 31A Springfield Road (Flat 2), was purchased by the defendant, Ms McCracken, in March 2013.

[5] I pause to explain the nature of the cross-lease. The cross-lease gives each owner an individual half share in the fee simple estate and a leasehold estate from the other owner in respect of their flat, for 999 years. In practical terms, the rights of each half-owner of the fee simple are so modified by the lease that the 50 per cent fee simple interest is irrelevant. The lease sets out each party’s area of exclusive possession, their respective rights and limitations. The exclusive use areas can be
very different. In this case, Flat 1 has an exclusive use area of 533m2 and Flat 2,

of 251 m2.

[6] At the time each of the parties purchased, there was a fence separating the properties. The path at issue ran along the plaintiffs’ side of the fence, below the plaintiffs’ front porch to their front steps, and also down the east side of their property. The strip containing the path and its curtilage, between the porch and the
fence, was approximately 11m2.

[7] A plan is attached to this judgment as Appendix “A” showing the two

properties and the path.

[8] Flat 1 contains the original bungalow built on the site in the 1930s. The cross-lease subdivision took place in 1992, creating the two flats. Afterwards, an old cottage was moved onto Flat 2.

[9] The path was long-established, dating back well before the cross-lease subdivision. (The fence was built in the course of the subdivision.) It was accepted by the defendant…

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 [2017] NZHC 755
Case: [2017] NZHC 755
Decision Date: 20 April 2017

CaseChat Overview and Summary

The plaintiffs, Arthur Boyer and Nicole Kramer, sought orders vesting 11 square meters of land belonging to their neighbor, Clare McCracken, in them. The dispute arose from a long-established path that ran along the plaintiffs' side of the fence separating their properties. The plaintiffs argued the path constituted a "wrongly placed structure" under ss 321-325 of the Property Law Act 2007 (the Act), while McCracken contended the matter was one of a negligent purchaser. The High Court of New Zealand had to decide whether it had jurisdiction to grant relief under s 323 of the Act and, if so, whether it was just and equitable to do so.

The court found it had jurisdiction under s 323 of the Act, as the path qualified as a "wrongly placed structure" despite being intentionally constructed in its current position. The court rejected McCracken's argument that the path was not wrongly placed because it was intentionally built on her land. The court also held that "land" in ss 321 and 323 includes a cross-lease estate, as the overall meaning and intent of the sections were clear enough.

In determining whether it was just and equitable to grant relief, the court considered various factors, including the parties' knowledge at the time of purchase, use of the structure, sensible enjoyment, indefeasibility of title, and alternative available solutions. The court found that the plaintiffs had materially benefited from the path for four to five years without paying for it, and that McCracken's exclusive area was small, making the strip meaningful to her. However, the court also found that there was material detriment to the plaintiffs' property if relief was not granted and relatively low detriment to McCracken's property if relief was granted. The court granted relief and ordered the path to become part of the plaintiffs' restrictive covenant area. The plaintiffs were also ordered to pay $85,000 in compensation to McCracken, along with all costs of survey, related expenses, and legal conveyancing expenses. Ancillary orders amending the leases were also made. The question of costs was left open for further submissions by both parties.

Orders