Fox v Hamilton - [2024] NZHC 2479

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-123

[2024] NZHC 2479

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

Hearing: 9 May 2024

Appearances:

T C Daley for Applicants

L B Hamilton (Respondent) in person (with Mr Hamilton as McKenzie friend)

Judgment:

30 August 2024

FOX v HAMILTON [2024] NZHC 2479 [30 August 2024]

JUDGMENT OF OSBORNE J

[1] This is a proceeding under the Property Law Act 2007 (the Act) for an order granting access to landlocked land.

[2] The six applicants own hillside properties off Wainui Main Road overlooking Akaroa Harbour (the A properties). The A 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 R property). The respondent also accesses her (vacant) property via the driveway.

[3] It was discovered after the respondent purchased the property in September 2020 that the driveway was not fully within 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 (Michelle Snape) with no easement in relation to it, whether in favour of the other applicants or the respondent.

The application

[4] The applicants retained Frizzell & Associates Ltd trading as Survus Consultants (Survus), to survey the affected properties and to produce a plan which would expand the right of way to follow the existing driveway (the Survey Plan). The expansion of the right of way would affect 102 m2 of the R property (the “Hamilton portion”) and a very small portion of the Snape property (the “Snape portion”).

[5] The applicants seek an order that right of way easements in accordance with the Schedule of Easements on the Survey Plan be granted on the same terms as the wording of the existing right of way easements. Ms Snape consents to the creation of the requested easements over the Snape portion.

[6] The applicants undertake to meet the legal and surveying costs associated with registration of new easements. The existing driveway does not require physical

alteration. The applicants submit they should not have to pay compensation to the respondent under s 330(1)(a) of Property Law Act 2007 (the Act) on the basis the respondent will suffer no prejudice from the modification of the existing right of way. In the alternative, should the Court think fit to impose a condition as to payment of compensation, they submit the sum…

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 2479
Case: [2024] NZHC 2479
Decision Date: 30 August 2024

CaseChat Overview and Summary

The applicants in this case sought an order for a right of way easement to be established over the respondent's property to provide access to their landlocked properties. The applicants argued that no compensation should be payable as the new easement would not cause the respondent any prejudice. The respondent initially opposed the application but later conceded the properties were landlocked and that the proposed easements would provide reasonable access. The central issue at the hearing was whether compensation should be payable and, if so, in what amount. The court found that compensation should be payable, considering the fair consideration which a willing buyer and a willing seller would agree to in a friendly negotiation. The court adopted the sum of $10,529.74, as agreed upon by the parties in August 2023, as the appropriate compensation. This figure was deemed to be the best evidence of the fair consideration for what the respondent would be giving up on a willing buyer/willing seller basis. The court ordered that the applicants pay this sum to the respondent on the registration of the new easement. The costs and disbursements of the proceeding were reserved for later determination.

Orders