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Gregory v EK Trust Ltd

Gregory v EK Trust Ltd

Case [2015] NZHC 1785 31 July 2015

Easements & Covenants

Adverse Possession

Implied Terms

Alteration of Easements

Modification of Easements

Implied Rights

Reinstatement of Easements

Property Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-730 [2015] NZHC 1785

UNDER
Part 19 of the High Court Rules and

Sections 313 and 317 of the Property Law
Act 2007

BETWEEN

CAMERON THOMAS GREGORY, TRACEY MICHELLE GREGORY, AND COLIN CHARLES MCKAY

Applicants

AND

EK TRUST LIMITED First Respondent

CHRISTIAN FAMILY TRUST LIMITED Second Respondent

PETER JAMES FORDE

DEAN WILLIAM REVELL and
ELIZABETH REVELL

Third Respondents

Hearing: 23 July 2015

Counsel:

H Waalkens QC for applicants
D Chisholm QC and A J Steel for respondents

Judgment:

31 July 2015

JUDGMENT OF KATZ J

This judgment was delivered by me on 31 July 2015 at 4:00pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Wilson McKay, Auckland
Brown Partners, Auckland

Counsel: H Waalkens QC, Quay Chambers, Auckland
D Chilsholm QC, Barrister, Auckland

GREGORY & ORS v EK TRUST LIMITED & ORS [2015] NZHC 1785 [31 July 2015]

Introduction

[1] The parties are the owners of neighbouring properties on Auckland’s North Shore. Their homes are situated along a shared right of way off Rarere Road, Takapuna. The western strip of the right of way (“Western ROW”) is owned by the first respondent, a family trust associated with Evan Christian (“EK Trust”). The eastern strip of the right of way is owned by the applicants (“Gregory trustees”). There has been a gate at the top of the right of way since about 1987.

[2] In March 2015 the EK Trust removed the part of the gate that was on the Western ROW. This rendered the gate on the other side of the driveway inoperable, so the Gregory trustees had no option but to remove it also. The Gregory trustees then filed these proceedings. They claim that the relevant easement expressly or impliedly permits a gate to be installed at the top of the driveway, and that the EK Trust breached the easement by removing the gate. They seek an interim injunction that the gate be reinstated until their claim is heard and finally determined.

[3] Whether or not I should grant an injunction turns on the following key issues:1

(a) Whether the Gregory trustees can establish that there is a serious question to be tried. In particular, is there a sound legal basis for the claim that they are entitled to have a gate erected (or maintained) across the part of the EK Trust’s land that they have access rights over?

(b) Whether the balance of convenience and overall justice favours the

interim reinstatement of a gate, ahead of a full hearing of the parties’

dispute.

1 American Cyanamid Co v Ethicon Ltd [1975] AC 396, [1975] 1 All ER 504 (HL); Klissers
Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 140 (CA).

Factual background

[4] The property at 10 Rarere Road was purchased by the EK Trust in January

2013. It is at the end of the right of way, fronting on to Takapuna beach. Another family trust associated with Mr Christian, the Christian Family Trust…

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 Gregory v EK Trust Ltd

Details

AGLC: Gregory v EK Trust Ltd [2015] NZHC 1785
Case: [2015] NZHC 1785
Decision Date: 31 July 2015

CaseChat Overview and Summary

The case of Gregory v EK Trust Ltd involves a dispute between neighbouring property owners over a shared right of way. The applicants, who own a property along the right of way, sought an injunction to reinstate a gate that had been removed by the respondents, who own the adjacent property. The applicants argued that the removal of the gate breached the terms of the easement allowing for the gate's installation. The court had to determine whether there was a serious question to be tried on the merits of the case, and whether the balance of convenience and overall justice favoured the reinstatement of the gate. The court found that while the applicants' claim that the easement permitted a gate to be installed on the respondents' land was weak, it was not so lacking in merit as to fail the serious question to be tried threshold. However, the applicants' alternative claim to modify the easement under the Property Law Act 2007 was found to be without merit as the applicants were not "persons bound" by the easement. The balance of convenience was found to be evenly balanced, but the overall strength of the applicants' claims weighed against the grant of relief. The application for interim relief was therefore declined.

The final orders of the court were that the application for interim relief was declined and costs were reserved pending the outcome of the substantive hearing.

Orders