Davey v Baker - [2015] NZHC 2282

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV 2013-442-174 [2015] NZHC 2282

BETWEEN
IAN WALTON DAVEY,

NOVA ELIZABETH DAVEY AND LAWSON NEIL DAVEY AS TRUSTEES OF THE GAP TRUST

First Plaintiffs

AND

IAN WALTON DAVEY AND NORA ELIZABETH DAVEY Second Plaintiffs

AND

NICHOLAS DE CHAIR BAKER AND HEIDI MARIE BAKER

Defendants

Hearing:
Written submissions:

29 June - 3 July 2015

7 August 2015

Counsel:

G W Allan and H Palmer for Plaintiffs
G Downing for Defendants

Judgment:

21 September 2015

JUDGMENT OF BROWN J

DAVEY v BAKER [2015] NZHC 2282 [21 September 2015]

Table of Contents

Paragraph No.

Introduction [1] Factual background [6]
Should the plaintiffs’ application for an order for rectification
be granted? [21]

Should an order be made under s 317 modifying the route
of the right of way? [54]

A restrictive covenant with reference to the extent
of use of the easement [58]

A restrictive covenant under s 243 [65]

An implied positive covenant in respect of cost of
formation and maintenance [72] Is the plaintiffs’ claim the subject of an agreement to arbitrate? [84] Disposition [101]

Introduction

[1] In 1992 a right of way easement five metres wide and approximately

120 metres in length was granted over the land now owned by the defendants in favour of land owned by Mr Ian Davey. Construction of a roadway along the right of way was deferred at that time but the plaintiffs now wish to have the roadway constructed. However they consider that the route of the roadway agreed on in 1992 with the former owner of the servient land is not accurately defined by the registered easement but instead ran along an existing farm track which followed a more
northerly route across the defendants’ land.1

[2] Consequently the plaintiffs seek either an order for rectification in respect of the easement or an order under s 317 of the Property Law Act 2007 (the Act) modifying the easement so that the course of the right of way would run on the defendants’ land some five metres north of, but roughly parallel to, that shown in the registered easement.

[3] Alternatively, if the location of the right of way remains unaltered, they seek an order requiring the defendants to remove several gum trees within the path of the right of way and to trim the southern bank of the hillside to allow a five metre roadway to be constructed along the full length of the right of way. They also claim damages including aggravated and exemplary damages.

[4] The defendants contend that the plaintiffs’ claims relating to removal of obstructions on the right of way and for damages are the subject of an agreement to arbitrate and they filed a protest to jurisdiction to those aspects of the plaintiffs’
claim.

1 Until trial Mr Baker was the sole defendant. At trial an order was made joining Mrs Baker as a defendant. However extracts quoted from the pleadings refer to the defendant in the singular.

[5] Hence 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 [2015] NZHC 2282
Case: [2015] NZHC 2282
Decision Date: 21 September 2015

CaseChat Overview and Summary

Davey v Baker was a case in the High Court of New Zealand where the plaintiffs sought to either rectify the registered easement or modify its route. The easement was created in 1992 and allowed the plaintiffs to cross the defendants’ land. The plaintiffs argued that the easement did not accurately reflect the original agreement between the parties, and sought either an order for rectification or modification of the route. The defendants argued that the plaintiffs' claims for removal of obstructions on the right of way and for damages were subject to an agreement to arbitrate and filed a protest to jurisdiction to those aspects of the plaintiffs' claim.

The court held that the plaintiffs' application for an order for rectification should not be granted because the transfer document could not be amended in a manner that would give effect to the order sought by the plaintiffs. The court also held that the plaintiffs were not entitled to an order under s 317 modifying the route of the right of way because the plaintiffs were not persons "bound by" a restrictive covenant or a positive covenant. The court found that the plaintiffs' claim for orders in relation to the right of way easement was the subject of an agreement to arbitrate and a stay of the proceeding should be granted. However, the court made a declaration that the plaintiffs were entitled to form a driveway over the area of the right of way, subject to compliance with any local authority requirements under s 348 of the Local Government Act 1974.

The court made orders for a declaration that the plaintiffs are entitled to form a driveway along the route of the right of way, an order staying the proceeding and referring to arbitration the balance of the plaintiffs' claims, leave for the parties to apply to the Court for an order appointing an arbitrator, and leave for the parties to bring the proceeding back to the Court if it is not possible to construct a driveway along the route of the right of way.

Orders