G W Wilfred Limited - [2023] NZHC 1071

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-118

[2023] NZHC 1071

IN THE MATTER OF Part 19 High Court Rules 2016 and ss 316 – 317 Property Law Act 2007

BETWEEN

GW WILFIELD LIMITED

Applicant

Hearing: On the papers

Appearances:

J E Bayley for Applicant

Judgment:

5 May 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 5 May 2023 at 2.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE GW WILFIELD LTD [2023] NZHC 1071 [5 May 2023]

[1]This is an application, brought without notice, for orders:

(a)granting leave under r 19.5 of the High Court Rules 2016 for this proceeding to be brought by way of originating application; and

(b)directing that, pursuant to ss 316 and 317 of the Property Law Act 2007 (PLA), certain easement instruments are extinguished from land which is intended to be vested as road or reserve for a subdivision.

Leave to commence proceeding by way of originating application

[2] This is not a proceeding which may, as of right, be brought as an originating application under rr 19.2 to 19.4 of the High Court Rules. The court has jurisdiction under r 19.5 to grant leave for the proceeding to be brought as an originating application. It has previously been said it is probably through an oversight that r 19.2 does not expressly allow applications under ss 316 and 317 of the PLA to be made by way of an originating application.1 However, the originating application process is commonly used for these applications.2 Leave is granted accordingly.

Background

[3] The application relates to a subdivision in West Melton, in the Selwyn District. The subdivision is being developed in stages and Mr Hamish Wheelans, a director of the applicant company, explains in his affidavit that to date approximately 189 residential lots have been created, with a further 92 sold and currently under construction. There is further land still to be developed which includes land contained within the following records of title (the Affected Titles):

(a)839859 (the First Affected Title); and

(b)985831 (the Second Affected Title).

1 Re Avlis Ltd [2022] NZHC 1157 at [13] citing Re Marriner Property Ltd [2020] NZHC 1747 at
[31] and Wang v Auckland Council [2021] NZHC 499 at [8].
2 See Taurikura Holdings Ltd v Tauranga City Council [2022] NZHC 994; Land Depot Ltd v Friese
[2020] NZHC 1085; and Fair v Fair [2019] NZHC 2349, (2019) 20 NZCPR 652.

[4] The land in the Affected Titles is to form stages 11 to 19 of the applicant’s development, and subdivision consent for this development has been granted by the Selwyn District Council (the Council).

[5] The Affected Titles are subject to the following land covenants (the Covenants):

(a)The First Affected Title is subject to covenants created by the following easement instruments:

(i) 10339794.9;

(ii) 10532652.12;

(iii) 10596830.9; and

(iv) 10684724.14.

(b)Part of the land contained within the Second…

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 G W Wilfred Limited

Details

AGLC: G W Wilfred Limited [2023] NZHC 1071
Case: [2023] NZHC 1071
Decision Date: 5 May 2023

CaseChat Overview and Summary

GW Wilfred Limited, an applicant, sought orders in the High Court of New Zealand, Christchurch Registry, to extinguish certain easements over land intended to be vested as road or reserve for a subdivision in West Melton, Selwyn District. The easements, benefiting multiple titles, were created by the applicant and imposed restrictions on the development of residential lots. However, these restrictions became redundant as the land was to vest in the Council or the Crown as road or reserve. The applicant argued that it was impractical to obtain the consent of all affected title owners and sought the court's intervention to extinguish the easements.

The legal issues revolved around the authority to bring the proceeding by way of an originating application and the justification for extinguishing the easements under the Property Law Act 2007. The court found that although the proceeding could not be brought as of right as an originating application, it had the jurisdiction to grant leave to do so under rule 19.5 of the High Court Rules 2016. The court further determined that extinguishing the easements was warranted because they served no practical purpose over the land to vest as road or reserve, and the extinguishment would not substantially injure any person entitled to the benefit of the easements.

The court granted the application, extinguishing specific easements over parts of the affected titles that were to vest as road or reserve. The court also granted leave for the application to proceed without notice, considering the numerous affected titles and the minimal likelihood of adverse effects on the title owners. The decision facilitated the applicant's ability to complete the subdivision of the land, ensuring the efficient development of the property.

The final orders included granting leave for the proceeding to be brought by way of an originating application, extinguishing specific easements from the affected titles where the land was surveyed and deposited/approved to vest as road or reserve, and allowing for a variation of these orders if any issues arose during implementation. The applicant was also granted leave to apply for a variation should any issues arise as to the implementation of the orders.

Orders