De Wys v Hawkins - [2024] NZHC 3606

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-499

[2024] NZHC 3606

UNDER the Land Transfer Act 2017

IN THE MATTER

of Caveat Number 13059229.1

BETWEEN

CHRISTOPHER WILLIAM RAYNER DE WYS

Applicant

AND

HELEN LETITIA HAWKINS, RICHARD DANVERS HAWKINS and PETER

CLIFFORD MACIASZEK, as executors of the Estate of David Roy Powell Respondents

Hearing: 18 November 2024

Appearances:

P A Cowey and K T Mead for Applicant

M J Borcoski and C C Smith Diaz for Respondents

Judgment:

29 November 2024

JUDGMENT OF ASSOCIATE JUDGE LESTER

DE WYS v HAWKINS [2024] NZHC 3606 [29 November 2024]

Introduction

[1] Mr de Wys applies to sustain a caveat intended to protect his claim to part of a right of way which he says should not have been surrendered. Mr de Wys submits the caveat is necessary to prevent the respondents selling a property which includes the now surrendered section of the right of way.

Diagram of the Lots

[2]Below is a diagram of the Lots (not to scale).

[3] Mr de Wys has a life interest in Lots A and B left to him (along with a life interest in other property) by the late Alison Powell (Alison). Alison died on 24 February 2020 leaving a Will dated 31 October 2017 over which Probate was granted on 13 March 2020. I will come back to the identity of the executors of Alison’s estate.

[4] At the time of Alison’s death, Lot C was owned by her brother, David Powell (David). David died on 24 November 2022 and the respondents are the executors of his estate (the Executors). The Executors as owners of Lot C have sold the property to a third party, that sale was due to settle in September this year, with settlement being held up by Mr de Wys’ caveat.

[5] Lots A and B are accessed by an approximately 50 metre long driveway created by a right of way easement. Lot C being the burdened land. At the time of Alison’s death, the registered easement on Lot C was 4.5 metres wide. The easement was created in 1999, being granted to Alison by her late brother, David.

[6] The Executors of Alison’s estate are Garry Thompson and Philippa Horn. Mr de Wys had lodged a notice of claim against Lots A and B which lapsed on 11 January 2022.1

[7] Ms Horn and Mr Thompson, as Executors of Alison’s estate, executed a partial surrender of the right of way which reduced its width to 2.7 metres. Mr de Wys said he did not discover the partial surrender until August 2022 and he claims his life interest in Lots A and B includes the benefit of the right of way which he says should not have been partially surrendered.

The original creation of the right of way

[8] Helen Hawkins (Helen) is the sibling of Alison and David. Helen explains her father purchased…

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 De Wys v Hawkins

Details

AGLC: De Wys v Hawkins [2024] NZHC 3606
Case: [2024] NZHC 3606
Decision Date: 29 November 2024

CaseChat Overview and Summary

In the High Court of New Zealand, in the Christchurch Registry, Christopher William Rayner de Wys, as the applicant, filed an application to sustain a caveat to protect his claim to part of a right of way which he contends should not have been surrendered. Helen Letitia Hawkins, Richard Danvers Hawkins, and Peter Clifford Maciaszek, as executors of the estate of David Roy Powell, are the respondents. The central issue in the case is whether the respondents committed fraud under the Land Transfer Act 2017 when they partially surrendered a right of way over Lot C, which benefits Lots A and B, owned by de Wys. The application to sustain the caveat was based on the claim that the respondents, as executors of Alison Powell's estate, obtained the partial surrender of the right of way through fraud and for no consideration.

The court examined the principles governing the application to sustain a caveat and found that the threshold for sustaining a caveat is not high. The applicant must show an entitlement to a beneficial interest in the land. However, the court determined that de Wys did not establish an arguable case that the respondents committed fraud under the Act. The court reasoned that the partial surrender was handled through solicitors, and the respondents were not directly involved in any breach of duty by the executors of Alison's estate. Additionally, the court found that de Wys did not have a fixed and ascertainable interest in the land that benefitted from the partially cancelled right of way, as the estate was still in administration. Therefore, de Wys's application to sustain the caveat was dismissed. The court ordered that costs should follow the event.

Orders