Davey v Baker - [2014] NZHC 1574

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2013-442-000174 [2014] NZHC 1574

BETWEEN
IAN WALTON DAVEY, NOVA

ELIZABETH DAVEY and CARL JORGENSEN

First Plaintiffs

AND

IAN WALTON DAVEY and NOVA ELIZABETH DAVEY

Second Plaintiffs

AND

NICHOLAS DE CHAIR BAKER Defendant

AND

NORMAN MICHAEL PAVELKA First Third Party

AND

SELWYN RAYMOND COLWELL LIGHT

Second Third Party

Hearing: 23 June 2014

Appearances:

G W Allan for Plaintiffs
G M Downing for Defendant
G J Praat for Second Third Party
No appearance for First Third Party

Judgment:

7 July 2014

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] This case concerns a right of way easement over the defendant’s land, in

favour of land owned by the plaintiffs.

[2] On 17 February 2014 the Court granted leave to the plaintiffs to file a second amended statement of claim, to include a cause of action based on rectification of the
easement. A second amended statement of claim was then filed, and a statement of

DAVEY v BAKER [2014] NZHC 1574 [7 July 2014]

defence followed. Shortly after that, within a period of 10 working days, the defendant filed and served third party notices against Mr N M Pavelka, the first third party, who owned the property now owned by the defendant at the time the easement was created, and against Mr S R C Light, the surveyor who acted in relation to creation of the easement.

[3] The plaintiffs apply to set aside the third party notices, under r 4.16(2). The relevant parts of r 4.16 are these:

4.16 Setting aside third party notice

(1) …

(2) A party to a proceeding served with a third party notice issued and served without leave of the court may apply to the court to have the notice set aside.

(3) In either case, the court may –

(a) set the third party notice aside and dismiss the defendant’s
statement of claim against the third party –

(i) on the merits; or

(ii) without prejudice to the right of the defendant to pursue that claim against the third party in an independent proceeding; or

(b) give other directions.

[4] The defendant opposes the application. Neither third party has taken any steps on this application, but each has filed a statement of defence, in which each pleads as a positive defence that each claim now brought by the defendant is statute- barred.

[5] When considering an application under r 4.16 the Court is to have regard to r 4.4(1) which sets out four circumstances in which a third party notice may be issued.1 Rule 4.16 does not require the Court to be confined to the circumstances set out in r 4.4.2 Even if a third party notice is properly issued under one of the sub- paragraphs in r 4.4(1), it may still be set aside under r 4.16. A defendant cannot

insist that a third party be joined to a proceeding as of right.3 Broader considerations, such as convenience and overall justice, may separately justify an order setting aside…

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 [2014] NZHC 1574
Case: [2014] NZHC 1574
Decision Date: 7 July 2014

CaseChat Overview and Summary

This case concerns a right of way easement over the defendant's land, in favour of land owned by the plaintiffs. The plaintiffs applied to set aside third party notices served by the defendant against two third parties, and the defendant opposed the application. The court was required to decide whether the third party claims fell within the ambit of the rules allowing third party proceedings and whether, in the circumstances, they should be set aside. The court held that the third party claims did not fall within the rules and that they should be set aside. The third party claims were dismissed, without prejudice to the defendant pursuing them in separate proceedings. The plaintiffs were awarded costs on a 2B basis, together with disbursements to be fixed by the Registrar.

The court considered the causes of action in the second amended statement of claim, which included claims for rectification of the easement, modification of the easement, removal of trees obstructing the easement, and damages for breach of an implied term in the Land Transfer Regulations 2002. The court noted that the first and second causes of action raised the question of whether the right of way was in the location that it was intended to be at the time it was created. The defendant's claims against the third parties alleged a duty of care to subsequent purchasers of the servient land, though the ambit of that duty was not specified. The court found that the defendant's claims against the first and second third parties were not sufficient to determine the application in their favour, in relation to the first and second causes of action, as there were further issues to be considered. The court held that the third party claims should be set aside, in relation to the first and second causes of action, due to the tenuous relationship between the defendant and the third parties, the potential for prolonged proceedings, and the lack of limitation issues that might exist now but which did not exist when the third party proceedings were issued. The court also held that the third party claims did not fall within either (c) or (d) of r 4.4(1) in relation to the fourth and fifth causes of action, as they relied entirely on the conduct of the defendant some 20 years after either the first or second third party was last involved in this case.

Orders