Hearing:	27 April 2016
Court:	Stevens, Wild and Cooper JJ
Counsel:	G W Allan and H I Palmer for First and Second Appellants G M Downing for Respondents
Judgment:	11 July 2016 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe cross-appeal is dismissed.
CThe appellants must pay the respondents costs for a standard appeal on a band A basis (reduced by 25 per cent to take into account the cross‑appeal) and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Table of Contents

Para No

Introduction  [1]
Background  [8]
High Court judgment  [24]

Rectification  [26]
Order under s 317 of the 2007 Act  [29]
Agreement to arbitrate  [33]
Issue estoppel  [34]
Declarations  [35]

Rectification [36]

Appellants’ submissions  [36]
Applicable legal principles  [37]
Factual context  [41]
Our analysis  [44]

Availability of order under s 317 of the 2007 Act [49]

The statutory provisions  [50]
Appellants’ submissions  [53]
The power to modify  [56]
Our analysis  [69]

Cross-appeal [79]
Result [83]

Introduction

The appellants, who we shall refer to collectively as the Daveys, own and occupy a block of rural land adjacent to the Motueka Highway. In 1988 the neighbouring property was purchased by a Mr and Mrs Pavelka (the Pavelkas). The two properties shared a common boundary. In 1992 Mr Pavelka and Mr Davey agreed on a boundary adjustment, the essence of which was that an area of the Daveys’ land would be transferred to the Pavelkas and a right of way easement would be put in place so that the Daveys could retain access to the hill block on their property. The surveying work for the required easement was carried out by a firm of surveyors and the relevant documents were duly registered.
The respondents, the Bakers, acquired the Pavelkas property in 2002.[1] At that time, the Daveys had no need for, and did not use, the right of way. However, in 2010, circumstances changed and Mr Davey wished to exercise the right to construct a roadway along what he thought was the right of way, an old farm track, for access to the hill block with his tractor.
[1]From a third party, the Pavelkas having sold the property in 1996.
The Daveys subsequently discovered that the right of way did not follow the old farm track. The Daveys considered that the route of the proposed roadway (said to have been agreed in 1992 with the Pavelkas) was not accurately defined in the right of way easement. Construction of the roadway along the registered right of way will be more problematic and expensive than if the right of way were along 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 Davey v Baker

Details

AGLC: Davey v Baker [2016] NZCA 313
Case: [2016] NZCA 313
Decision Date: 11 July 2016 at 10.00 am

CaseChat Overview and Summary

Davey and another v Baker is an appeal and cross-appeal arising from proceedings in the High Court at Nelson in which the appellants sought orders to rectify and modify an easement over land owned by the respondents. The Daveys sought either an order for rectification of the easement to accord with the common intention of the parties or an order under s 317 of the Property Law Act 2007 (the 2007 Act) modifying the easement, so that the course of the right of way would run on the respondents’ land some five metres north of (but roughly parallel to) the position of the right of way shown in the registered easement. The High Court judge declined both orders. Instead, the judge made a declaration that the appellants were entitled to form a driveway along the right of way, subject to compliance with local government requirements. The appellants appealed on the grounds that the judge erred in finding that there was no power for the court to rectify the agreement regarding the placement of the right of way and that the appellants were not a qualifying person under s 316 of the 2007 Act and did not have standing to bring a s 317 application. The respondents cross-appealed on the basis that the judge was wrong to decline to allow the defence of issue estoppel in relation to the appellants’ claim for the removal of trees on the right of way. The Court of Appeal dismissed the appeal and cross-appeal. In doing so, it held that the appellants had no standing to bring a s 317 application and that the High Court judge was correct to decline to allow the defence of issue estoppel.

Orders