Collow v Body Corporate 171766
[2025] NZHC 646
•26 March 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-002356 [2025] NZHC 646
BETWEEN MELISSA MARY COLLOW and DARRYL VAN RENSBURG
Applicants
AND
BODY CORPORATE 171766
Respondent
Hearing: 24 March 2025 Appearances:
A J Steele / M Clark for the Applicants L M Van / L H Hooft for the Respondent
Judgment:
26 March 2025
JUDGMENT OF ASSOCIATE JUDGE COGSWELL
This judgment was delivered by me on 26 March 2025 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................
Solicitors:
Anthony Harper, Auckland Martelli McKegg, Auckland
A J Steele, Auckland
COLLOW v BODY CORPORATE 171766 [2025] NZHC 646 [26 March 2025]
Background
[1] The applicants are the registered owners of the property located at 59 Vermont Street, Ponsonby, Auckland and comprised in Record of Title NA98B/674 (Legal Description, Lot 3 Deposited Plan 163145).
[2] The respondent is a Body Corporate which, pursuant to s 54 of the Unit Titles Act 2010, owns the common property in the unit title development comprised in Record of Title NA105A/78 and located at 63 Vermont Street, Ponsonby, Auckland.
[3]The applicants’ and respondent’s properties are immediate neighbours.
[4] The parties have discovered that part of the applicants’ garage, concrete stairwell structure, and some pathways and garden areas partially encroach upon the respondent’s common property (the encroachment). The encroachment is a “wrongly placed structure” for the purposes of s 321 of the of the Property Law Act 2007 (Act).
[5] The parties worked together to resolve the issues raised by the encroachment by means of an encroachment easement and have agreed its terms (Easement Instrument).
[6] In accordance with the requirements of the Unit Titles Act 2010, the respondent completed the designated resolution process approving the Easement Instrument and provided the applicants with its certificate confirming that the Easement Instrument had passed and that all persons required to be served had been served and there were no objections.
[7] The parties then sought to have Land Information New Zealand (LINZ) register the Easement Instrument, but LINZ declined registration, stating that
…encroachment easements could only be registered where there is statutory authority to do so, such as an order of the High Court under s 325 Property Law Act.
[8] The applicants now seek summary judgment on their application for orders under s 325(1)(b) of the Act. The respondent consents to the orders sought.
Parties are in agreement as to the orders sought
[9] The proceeding seeks an order under s 325(1)(b) of the Act granting an encroachment easement over the respondent’s land, in favour of the applicants’ land. An order is required for LINZ to register the Easement Instrument.
[10] The parties have reached a consent position and filed a consent memorandum. That memorandum included filed draft Court orders which have been submitted to LINZ for confirmation of the correct wording should the Court grant the order. LINZ has approved the wording of paragraphs [1] and [2] of the draft order. The draft Court order contains the wording of the Easement Instrument. The draft Court order and draft Easement Instrument are attached to this judgment.
Jurisdiction
[11] Sections 321 to 325 of the Act provide for relief in the case of wrongly placed structures. The encroachment is a wrongly placed structure.
[12] The Court may make various orders under s 325 of the Act, for relief under s 323 of the Act on application under s 322. As owners, the applicants have standing under s 322(1) of the Act to make this application.
[13] The available orders include granting an easement over any land specified in the order for the benefit of the land affected by, or the land intended for, the wrongly placed structure.
[14] In Iveson v Marr, in addressing the previous equivalent section1, the Court held that it had jurisdiction to exercise a statutory discretion by way of summary judgment.2 Orders under s 325 of the Act are an exercise of discretion. The Court is able to grant summary judgment relief under s 325(1)(b) of the Act in suitable circumstances.
1 Section 129 of the Property Law Act 1952.
2 Iveson v Marr HC Auckland, CIV-2006-404-4256, 25 June 2007.
[15] The Court noted that such a discretion should only be exercised on a summary judgment in the “clearest of cases”. This application is a clear case for the exercise of the Court’s discretion in favour of the orders sought.
[16] It is just and equitable to grant the relief sought by the parties. The following grounds support why relief should be granted:
(a)The encroachment was inadvertent and not known to the applicants when they purchased their property;
(b)The Easement Instrument is straightforward in nature, with clear terms and a simple scope, making the order sought both practical and uncomplicated;
(c)the respondent has consented to the granting of an encroachment easement, and there is no dispute as to whether an order should be made;
(d)the applicants and the respondent have agreed on the terms and conditions of the Easement Instrument;
(e)the applicants’ mortgagee consents to the orders sought;
(f)the individuals and entities that may have an interest in the encroachment easement have either raised no objections or consented to the granting of the encroachment easement, or have confirmed that they have no interest in the proceedings;
(g)The Auckland Council has confirmed that it has no interest in the application and does not intend to take any step in the proceeding;
(h)LINZ has advised the parties that an encroachment easement will only be registered following a Court order, making this application necessary;
(i)Finally, LINZ has been approached in relation to the form of the draft orders sought and has approved the wording of it.
[17] The Court has jurisdiction to grant the orders sought under s 325 of the Act by way of summary judgment, and on the basis of the evidence and submissions of the parties filed, I consider that this is an appropriate case for the exercise of the Court’s discretion to grant the orders as sought.
Judgment
[18] The Court orders pursuant to s 325(1)(b) of the Property Law Act 2007 that an easement be granted over the respondent’s land (being Common Property DP171766 (SRS NA105A/78)) shown “A” on DP604586 for the benefit of the applicants’ land (being Lot 3 DP 163145 (NA98B/674)) on the terms and conditions set out in the draft Easement Instrument attached to this judgment. This includes the right at cl 3(7) of the draft Easement Instrument, on the part of the applicants, as grantees, to the exclusive use and enjoyment of that part of the Easement Facility (as defined in the draft Easement Instrument) that forms part of the garage, the concrete stairwell structure, and the pathways and gardens that are partly on the Burdened Land (as defined in the draft Easement Instrument).
[19]There is no order as to costs.
[20] Leave is reserved to the parties should further orders be required to give effect to this summary judgment.
Associate Judge Cogswell
In The High Co‹irt of New Zealand A‹ichland Regisl/y
I Te Köti Mat‹ia 0 Aotearoa Tamaki Mahaurau Rohe
CIV 2023-404-2356
Under Between
And
Part 6 Suhpart 2 fwrongly placed structures} and section 322 of the Property Law Act 2007
Melis sa Mary Collow photogmpher and Darryl van Rensburg IT Senior Client Manager, both of 59 Vermont Snel, Ponsonby AucLland
Applicants
Body Corporate 171766 a duly created body corgorare of the unit rifle development at 63 Vermont Street Ponsonhy. Auckland
Respondent
Dared This
Martelli M‘Kegg
Coun Order dayo
2025
DX CP24030 Auoldand CBD 01D
Te: CO-378 7333 Tel - CO-?74 ?453
1.
To:
To:
RespoiJdent
Land InfomJarÓn New Zealand
ON READING the PlaintiF s ameiJded suJtement of claim dated 2ò FebMar,' 202a,
AND ON READING the PIain£Ifs iiJmrbcutor,' apglica£on for sunJmar,' judgnJent
dal 27 June 2024 AND ON READING the affida cit of Melissa Mar,' Cotton dated 10 Oco!›er 2023 AND ON READING the joiiJr memorandunJ of counsel dared 3 DecenJher 2024. AND ON READING the Nither aIfìda’vir of Fdelissa Fa r ’ CoIIow
Pro’viding Update and AddressiiJg Umiliare’ uers dared 28 Fehruar,' 202*. AND ON
READING the aIfìda'zir of Donna Natia Faiilab dal 24 Fehruar,' 202* AND ON READING the consent nJemoraiJdum of couiJsel dal 21 March 202* AND UPON che appliaticr being heard on 24 March 202a, AND UPON HEARING Mr A J Steele for the PlaiiJriff. AND U9ON HEARING Ms L M San and Mr L J '’A™r Hooft Iór the DelendaiJL and pursuant to secticr 322(3) and 32*f1)f!›) and ‹'d) ofthe Propert',' La’z/ Act 2007, this Court ORDERS THAT
1. AiJ easement is granted o’ver the RespondeiJr”s land ‹'!›eiiJg ConJmon Progew,' DP 1717òó fSRS N.A105 ''74a) shown “A on DP ó045ò6 for the henefit of the @pIicaiJr”s land ‹'being Los 3 DP 16314* IN.A9ò6/’ó74t) on the terms and conditicrs ser our in the attache‹I fomJ (For inI;
2. This includes the right at clause 3f7) of the Forno cv the part of the @plicant as grantee, to the etc lusive use and enjc",'nJent of that part of the Easement Facilf,' fas defined in the Form) that forms pait of the garage the ccrcrete stairwell structure and the pathwa','s and gardens that are parti,' on the Burdened Land fas defined in the FomJt.
Dared che da, of
f Dep\ity) Registrar
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Fo rm 22
Easement instrument to grant easement or prof/r ä pre/tôre
( Section 109 Land 7mnsler Act 2017 j
Grantor
Grantee
Grant of Easement or rofir 3 prei/dze
SchedWeA regGmJ
| Purpose of Easement, or profTt | ?hown (plan refefenoei | burdened Land ( Record of Title j | Benefited Land (Record of Title) or in |
| Right of Support and Right to Occupy | ”A” on DP 604586 | Comnon Property DP 171766 (5RS £JA105A/78 j | Lot 3 DP 163145 (£JA98B/674) |
This a opi sved fin at may be used fni ledge ment a s a n eIect'o nic inst in men- undei the La nd Tim ns-ei Act 2D 17
basements or profitsé prend’re rights and powers (includin g terms, covenants md con ditioos)
Unless othefw!se p+ovided below. the rights and powers implied in specified classes of event are those prescribed by the Land Transfer Regulators 2018 andfor Schedule 5 of the Property Lea Aot ?DD7
The implied rights and powers are hefeby added to by the provisions set out in Annexure Schedule 1
Annexure Sch edule 1
(A)The Grantor is the registered owner of the Burdened Land set out in Schedule A.
(B)The Grants is the regislered owner of the 6enefiW Land set out in Schedule A.
(C)There is erected, placed or Btu ataJ on the Benefited Land a gamge. a concrete stairwe II structure and some pathways and garden areas th at part ally encroach on the 6urdened La nd. These encroachments are all within the area identified in Schedule A as the area marked A on DP 604586 (support areai.
(D)A site survey plan of the support area shaw!ng the encrocchnwnts is attached. this is attached ta shoa' the encroachments only, not to indicate the easement area.
Grant of easement
The provisions of Schedule 5 of the Land Tmnsfer Regulators 2018 apgly in relation to the right of support easement and the right to occupy easement and those provisions are varied, negatved. added to and/cr substituted as fdlms:
Clause 1 in Schedule 5 of the Land Tmnsler Regulations ?D18 is varied by the addition of the fdlowing definitions or exten on to definitons as the ccse rricy be.
'Easement Facility' is extended by the addition of the following siJb-d ause (g i.
(gjfor the right of support and the right to occupy. means the structures and areas including but not limited ii foundations necessary or required to support the gamge. the concrete stairwell structure and the pathways and gardens that partially encroach on the Burdened Land and includes the surface end sub- surfaces of the support area and the entirety of the driveway wall situaW on the support area.
•'Granteeand Grantor’ have the meanings given by secton 107 of the Aot and in clauses 3 ii 9A and include thee persons' agents. employees. contmctors. tenants. licensees and invitees.
•'right to occupy’” means the rights decoded by this instrument in rel at on to the support area.
•'right of support' nwcns the rights reco+ded by this instrument in rel ation to th e support area.
•'supgort area" mans the area shown as A on DP 604586 as set out in Schedule A.
2. Clause ? in Schedule 5 of the Land Tmnsfer Regulators 2018 is vari ed by the additon of the following sub- clauses (h) and (ij.
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(n) a ngnt ot support. (ij a right ii occupy.
The rights and powers implied in easements granting certain rights in Schedule 5 of the Land Tmnsfer Regulations 2D18 are varied by the addition of the following dause 9A in relaton to the right of support and the right to occupy:
8A R ight of support an d right to occupy
(1 i
A right of support and a right ii occupy includcs the right for the Gmntee.
To encroach on the support area. and use the support area (including the drily wall located on the Burdened Land) cs physical support for the gamge and the concrete stairwell structure and any other structure that exists at the dale of this Instrument that encroaches on the support area flank Inc to time:
(b j
(ci
To inspect anything on the support area;
Subject to clause 4 of this Annexure Schedule 1, ii heep, maintain. repair, replace, cleanse and decomte the support area and anything on it. including the garage door and facade of the garage,
(2)The Gmntor shall not do cr pemJit anything6 be done on the 6urdened Land which shall cause any damage to the Easement Facility or the support area or anything on it, or rend er any of th• se unsafe or unstable , or cause any loss of phy cal support ta the 6eriefitting Land inc!uding the gamge and the concrete stairwell structure and shall not remove or permit to be removed any part of the Easement Fcciliry without the prior written consent of the Grantee unIss required to do so by the ten1to1aI authority.
(3)The Gmntee shall not do or permit6 be done anything on the support area whereby any building or struotu re erected by the Gmntor en the Burdened Land shall in any way be renderaJ unscfe or unmabe.
(4)I i a territorial authority requires the Easement Facility. or any part of it, to be demolished (or if the partes jointly consent to itj. the pcrtes shall proceed to build a substitute Easement Facility. The constructor of any such substtute Easement Facility and any subsequent modification ii it shall be carried alt:
o. in a proper and competent manner,
b.in accord ance with plans and specifications apgroW by the Grantor and the Gmntee (such approval not ii be unreasonably withheld) before any work (including any demolition work) is connenoed,
in accord ance with the requi cements of Iaw end the local authority h aving
d. with all moeon able speed:
ein such manner as to cause as little disturbance and nuisance as possible to the other property and the occupiers end users of the other property, and
f.in such manner as to ensure that the Easement Facility. any building supported by the Easement Facility, and any property affect by the Easement Facility shall not be rendered unstable or unsafe or jeopardi° in any manner.
(5)The Gmntor and GrcnW shall share the cost of rricintaining and requiring the Easement Facility. and (if clause 9A(4 j applies) the cost of demolishing the exist ng Easement Fcciliry and erecting a siJbstiNte Easement Facility, in the same pro portion as set out in clause 4 of this Annexu re Schedule 1 (as they rel ate to each distinct part of the Easement Facility that each party is responsible for) unless such maintenance repair or re pt acement arises through the omission,
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nogluct or outuult of uithur tnu mrcntor or tne Grantee cr tnuir sts. employees. contmvturs.
ten ants. licensees, invitees. ments or walkmen. In the larter ccse. the cost of making good siJch damage or carrying out repairs shall be borne entirely by the party who mused such dcmage or necessitated siJch repairs through their neglect or default. A party exercising any rights und er these conditons sh elf make good, at the expense of that p arty, cny danJage which may be mused to the other property and any improvements situated on the other property.
(6)The Gmntor maintains insiJmnce for the buildings and structures on the Burdened Land, inc!uding structures which are within the Easement Facility. The GrcnW sh all pay an anount of money to the Grantor as a contribution towards the Gmnbir’s masts of insumnoe (Insurance Contribution), siJch en amount ii be fixed at SSDD. DD per annum. in the initial period. The Grantor may increase the Insurance Contri b‹Jton annu ally:
(a j by giving 5 working days written notice6 the Gmntee: and
(bj the increase shall be set siJch that the Insumnce Contribution for each year is equ at to 2% of the Gmnto#s total costs of insumnoe for that year.
(7)Each Easement Facility and any substitule Easement Facility erected pursu ant ii this easement shall confer on the Gmnbir and the Grantee equal rights to use and enjoyment of the Easement Facility during the term, scve that the Gmntee shall h ave the exclusive right ii use end enjoy that part of the Easement Facility that forms part of the gamge, the co ncrele stairwell structure and the pathways and gardens that part ally encroach on the 6urdened Land.
{8) The provisions of this section sh all agply to a substitute Easement Facility.
The rights and powers implied in all classy of easement in Schedule 5 of the Land Tmnsle r Regulat one 2018 are varied cs follows.
(aiClause 11 (1) and CI ause 11(2 j are deleted in their entire\ and replaced with the following clause 11(1) and clause 11(2):
11(1 j The Gmntor shall be responsible fcr arianging the regair and maintenance of the driveway wall and/cr any retaining structure located in the suMpa n area, and for the associal costs, so cs to keep these things in good order and to present them from becoming a danger or nuisance.
11(2 j The Gmntee shall be respond ble for arranging the repair and maintenance of the garcge, the garage door and facade of the garage, the concrete stairwell structure. the pathways and garden areas and any other thing that encroach on the support area ftonJ time to time (other than the driveway wall i, and for the associated costs, so as to keep these things in good order and to present them from becoming a danger or nuisance, unIss the inciJnlng of costs was mused by the delibemle aot or omi on of the Gmn6r. in which case the Gmntor sh all be respond ble for the costs.
Lot 2
DP 163145
Lot 3
DP 163145
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