Fox v Hamilton - [2024] NZHC 3454

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-123

[2024] NZHC 3454

UNDER Sections 327 and 328 Property Law Act 2007

IN THE MATTER

of an application in respect of landlocked land

BETWEEN

HENRY ALLAN FOX and MARIE PATRICIA MUHL

First Applicants

NATHALIE FREDERIQUE GIRAUDON and EMMANUEL STAUDER
Second Applicants

JONATHAN ROBERT SMITH,

BEVERLEY ANN WALLS and PETER MARK WALLS

Third Applicants

MICHELLE HELEN SNAPE
Fourth Applicant

PHILIP LAURENCE LEES
Fifth Applicant

DONALD GORDON MICHAEL and KAREN HILDA MICHAEL

Sixth Applicants

AND

LISEL BRITTA HAMILTON

Respondent

Appearances:
T C Daley for Applicants

L B Hamilton (Respondent) in person

Judgment:

19 November 2024

(Determined on the papers)

FOX v HAMILTON [2024] NZHC 3454 [19 November 2024]

JUDGMENT OF OSBORNE J

Introduction

[1] This was a proceeding under the Property Law Act 2007 (PLA) for an order granting access to landlocked land. The applicants were successful.1

[2] The applicants submit they are entitled to costs and disbursements on the basis they were the successful party. The applicants seek: their costs of the proceedings on a Category 2 basis, with an uplift of 50 per cent in respect of all steps taken during the proceedings ($27,125.50 plus $13,562.75); and disbursements in respect of the proceedings ($20,707.64).

The judgment

[3] The six applicants own hillside properties off Wainui Main Road overlooking Akaroa Harbour. Those properties have for many years been accessed by a shared driveway traversing up the slope and, at its start, passing over the lower portion of the respondent’s property. The respondent also accesses her (vacant) property via the driveway.

[4] It was discovered after the respondent purchased her property in September 2020 that the driveway was not fully within the formal right of way easements the respondent’s predecessors in title had granted over their property. It transpires that the driveway also passes over a very small portion of land within the title of one of the applicants with no easement in relation to it, whether in favour of the other applicants or the respondent.

[5] The applicants sought an order that right of way easements in accordance with a schedule of easements on a survey plan be granted on the same terms as the wording of the existing right of way easements.

1 Fox v Hamilton [2024] NZHC 2479.

[6] The respondent accepted at the hearing that the land was landlocked (contrary to her position until then). The only issue at the hearing was compensation. I was satisfied it was appropriate there be a payment of compensation by the applicants to the respondent as a condition of this Court’s order. The compensation was set at
$10,529.74. That figure had been in a settlement agreement reached by the parties in August 2023 (nine months before the hearing). The respondent subsequently refused to complete the $10,529.74 settlement. The respondent at the hearing, without calling valuation evidence, submitted the applicants should be required to pay a total of
$66,000. Previously she had maintained she…

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 Fox v Hamilton

Details

AGLC: Fox v Hamilton [2024] NZHC 3454
Case: [2024] NZHC 3454
Decision Date: 19 November 2024

CaseChat Overview and Summary

In the case of Fox v Hamilton, six applicants sought an order for the granting of access to landlocked land, which was opposed by the respondent. The applicants were successful, and they now sought an order for their costs and disbursements. The applicants argued they were entitled to costs on a Category 2 basis with an uplift of 50 per cent for all steps taken during the proceedings, and they sought their disbursements in respect of the proceedings. The respondent opposed the costs application and submitted that the applicants should bear their own costs as the usual position in such cases is that costs are ordered against the applicants.

The court held that the principles to be applied in relation to the exercise of the discretion in relation to who pays costs emerge principally from the Court of Appeal’s decision in Lowe v Brankin. The court held that the applicants were the successful parties, and their argument that compensation be awarded by reference to the August 2023 agreement was accepted. The respondent was wholly unsuccessful. The court held the respondent’s conduct contributed unnecessarily to the time and expense of the proceeding and ordered the respondent to pay increased costs. The court set the level of uplift at 25 per cent, and fixed the costs to be awarded at $32,114.37. The court also ordered the respondent to pay the applicants’ disbursements, which totalled $20,707.64.

The court ordered the respondent to pay the applicants the costs of this proceeding fixed in the sum of $32,114.37 and their disbursements which totalled $20,707.64.

Orders