Guo v Bourke
[2016] NZHC 2240
•22 September 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-002466 [2016] NZHC 2240
IN THE MATTER OF the Property Law Act 2007, ss 313 and
323
BETWEEN
QUINGYAN GUO Applicant
AND
GARY EDWARD BOURKE AND BENJAMIN WILLIAM MCALPINE TOTHILL
Respondents
Hearing: 25 May 2016, 7 July 2016 Counsel:
D K Wilson for Applicant
W J Hamilton for RespondentJudgment:
22 September 2016
JUDGMENT OF DUFFY J
This judgment was delivered by me on 22 September 2016 at 2.15 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors:
Loo & Koo, Auckland
Duncan Cotterill, Christchurch
GUO v BOURKE & TOTHILL [2016] NZHC 2240 [22 September 2016]
[1] The applicant, Qinyang Guo, is the owner of a property at 129 Mountain Road, Epsom in Auckland City. The respondents, Gary Bourke and Benjamin Tothill, are the owners of the neighbouring property at 131 Mountain Road.1 A single driveway services both properties. Both parties have easements over this driveway, which allow them to access their respective properties.
[2] Ms Guo is concerned about a set of dual opening gates which Mr Bourke has erected across the upper part of the driveway. This has prompted her to bring an originating application seeking orders requiring the removal of the gates, which is opposed by Mr Bourke and Mr Tothill.2
[3] Mr Bourke and Mr Tothill have since expressed their concern about the extent to which landscaping has encroached on the driveway. They bring their own originating application in which they seek orders requiring the removal of the landscaping, which is opposed by Ms Guo.
[4] Both originating applications were heard together.
[5] The dispute surrounding the gates dates back to 2011 and it has become steadily more acrimonious over time, escalating to the point where either Mr or Mrs Bourke has filed multiple Police complaints against Ms Guo in relation to actual or perceived acts of aggression on her part. There have been protracted negotiations and a number of settlement offers have been made by both parties, all to no avail.
Background
[6] The subject properties originally formed a single section which was subdivided by the previous owner Beatrice Craig in 1977. The property at 129
Mountain Road (hereafter lot 2) fronts on to Mountain Road.3 The property at 131
Mountain Road (hereafter lot 1) is now at the rear of lot 2.4 The house on lot 1,
1 They own in this property in their capacity as trustees of a family trust; Mr Bourke lives at the property with his wife and children.
2 The orders are sought under ss 313 and 323 of the Property Law Act 2007.
3 Its legal description is lot 2 of deposited plan 8417.
4 Its legal description is lot 1 of deposited plan 8417.
which occupied by Mr Bourke and his family, is the original dwelling. The driveway looks to me to be the original driveway which led to the house on lot 1.
[7] When the property was subdivided into two lots, two right of way easements (A and B) were placed on the driveway and adjacent strips of land, which is now landscaped.5 Those strips of land are the subject of Mr Bourke and Mr Tothill’s originating application.
[8] With right of way A, the servient tenement is lot 1 (Mr Bourke and Mr Tothill) and the dominant tenement is lot 2 (Ms Guo). Conversely with right of way B, the servient tenement is lot 2 (Ms Guo) and the dominant tenement is lot 1 (Mr Bourke and Mr Tothill).
[9] Right of way A is considerably wider than right of way B. The actual sealed driveway spreads over part of each right of way, without entirely covering either of them. There is some landscaping including conifer trees on the northern boundary of right of way A. More than 50% of the width of right of way B is taken up with landscaping including trees, and in particular a very large palm tree. The landscaping looks well established.
[10] Ms Guo has two access points to the house on lot 2. First, there is separate and direct driveway access onto Mountain Road. Secondly, a short distance from where the right of ways join Mountain Road there is a turning that leads into the carport situated on lot 2. For Ms Guo to access the car ports and garage on lot 2, she need travel no more than half the distance of the right of ways. The only reason for her to access the full length of the right of ways would be to access the rear end of lot 2. This is presently a grassed and terraced area.
[11] Following the subdivision in 1977, Mrs Craig moved onto lot 2, which is the smaller property. Lot 1 was sold to a Mr Robert McEwen. It appears that shortly thereafter, a large white wooden gate was constructed towards the end of the right of
ways. At the same time, the rear boundary wall at the southern end between lots 1
5 There is a third easement for the purposes of storm water drainage which is not at issue in these proceedings.
and 2 was adjusted to allow more space for a car to drive around the corner. The adjustment to the boundary wall meant that part of the way along its length the wall diverged from the boundary and was positioned on lot 2 to the extent that for a short distance it intruded onto right of way B, where its end aligned originally with the white wooden gate. The fence and gate were still in place when Mr and Mrs Bourke moved on to lot 1.
[12] Mrs Craig consented to the above alterations at the time they were made, but no formal change was recorded on the titles pertaining to lots 1 and 2. Following the installation of the gates, lot 1 changed hands a number of times until Mr Bourke and Mr Tothill purchased the property in 2005. Mrs Craig continued to live at lot 2 until
2006, when the property was sold to Ms Guo. The arrangement regarding the wooden gate and the placement of the curved wall was maintained throughout the various changes of ownership of lot 1 and while Mrs Craig remained the owner of lot
2.
[13] Mr and Mrs Bourke said in evidence that they tended to keep the wooden gate closed. They have children and Mountain Road is a busy road. The wall and the gate act to close off lot 1 from Mountain Road, thus they provide a measure of security and privacy for the occupants of lot 1. The two existing access ways to the house on lot 2 would not have been impeded by the presence of the wooden gate across the right of ways. So it is understandable that Mrs Craig and the occupants of lot 1 reached an understanding about the gate across the right of ways.
[14] Until Ms Guo purchased lot 2, seemingly no-one was particularly concerned by the fact that the line of the wall did not accurately fit with the surveyed boundary lines or markers, or that there was a wooden gate across the upper end of the right of ways.
Contested facts
[15] Ms Guo maintains in her affidavit that when she purchased lot 2 “there was no gate at all” across the right of ways. Later in her oral evidence when questioned about whether she denied there was a wooden gate there at all or whether she just did not notice the wooden gate, she said: “I disagree that there was a gate”.
[16] So, Ms Guo’s evidence is that a gate first appeared across the right of ways when put there by Mr Bourke in 2008. Ms Guo says she told Mrs Bourke soon after that she objected to the gates’ presence. Ms Guo further says that over the last five years she has been asking Mr Bourke to remove the gates from their present location, but he has refused to do.
[17] Hai Qing Xu is the husband of Ms Guo. His evidence was confined to commenting on the present gates, which he said came as a surprise to him. He said nothing about whether there was a wooden gate across the right of ways before the present gates were placed there.
[18] On the other hand, Mr Bourke maintains that when Ms Guo purchased lot 2 and took occupation thereon, the wooden gate was in place. Mr Bourke’s evidence is confirmed by his wife, Bernadine Bourke and by Mathew Dalton, who was a contractor employed by Mr Bourke to install the steel gates. Part of the works Mr Dalton performed included the removal of the wooden gate and its gateposts.
[19] Mrs Bourke and Mr Dalton say that before the steel gates were erected, they visited Ms Guo to discuss with her the proposed plan to replace the wooden gate with new gates that would be positioned in the same place as the wooden gate. Mrs Bourke said that she and Mr Dalton explained to Ms Guo what they wished to do and sought her consent. Mrs Bourke said that Ms Guo asked if she would be required to contribute to the cost of the new gates and when she was told that was not so, she agreed to the proposed gates replacing the existing gate.
[20] Mrs Bourke acknowledged under cross-examination that the wooden gate was closed with a bolt that could be opened manually whereas the present steel gates are closed electronically. She acknowledged that she did not tell Ms Guo that the new gates would be controlled electronically. The effect of the gates being controlled electronically is that Ms Guo cannot open the gates as she has not been given the means to do so by Mr Bourke. This means that Ms Guo cannot use the
uppermost end of the right of ways to access the uppermost portion of lot 2,6 which would be the easiest way to access that area. Mrs Bourke also acknowledged that she did not advise Ms Guo the steel gates would remain in place permanently.
[21] Mrs Bourke was also cross-examined about whether she realised that one of the gateposts would be placed on lot 2, which was Ms Guo’s land. Her response was that she told Ms Guo the gate and the posts were to be placed in the same place as the existing gate and its posts.
[22] Mr Dalton admitted under cross-examination that he thought the new gates were going on Mr Bourke’s land. He said he assumed the new gates were going in the right place because they were replacing the existing wooden gate, which from its appearance looked to him as if it had been there for a long time. He confirmed that Ms Guo was told there would be no rubbish left on her land or damage to her land. His recollection was that Mrs Bourke said to Ms Guo, “this is Matt, he is our installer we are replacing the gates exactly where they are now,” to which Ms Guo nodded her head. In this regard he said there was “a lot of head nodding.” He also confirmed that Ms Guo was told she would not be responsible for the cost of the works.
[23] Mr Dalton said that after the discussion with Ms Guo, he later commenced work removing the wooden gate and erecting the steel gates. He said that those works proceeded “without any interjection” from Ms Guo. He described the works as taking about three weeks. During this time, he said, the gates were constantly on and off their hinges while adjustments were made. In addition to the gates and their posts, Mr Dalton installed sensors and cabling for the electronic control of the gates.
[24] Ms Guo denies that she was consulted by Mrs Bourke and Mr Dalton before the work to replace the wooden gate with the steel gates occurred. She denies that
she consented to this work.
6 The site visit I conducted suggested to me that the upper most area of lot 2 could be reached from lower down the right of way or from lot 2 but the heightened slope of the section at this point and the terraced nature of the section would have made access difficult for someone who was not physically agile.
[25] Ms Guo also denies seeing the new gates being erected, despite the evidence from Mrs Bourke and Mr Dalton that this task took approximately three weeks to complete. Ms Guo said she was away from the property a lot, which suggests she may not have had the opportunity to see the steel gates being erected.
[26] Mr Xu said that when he first saw the steel gates in place he was surprised as they were on the right of ways. He said as soon as they were installed, he went to complaint to Mr Bourke but no-one responded to him pressing the buzzer on the gates. He said that two or three days later he said to Mrs Bourke that the steel gates were built illegally on the right of ways and without Ms Guo’s consent but that Mrs Bourke rejected this. He also said that throughout the years when the parties had been disputing the presence of the steel gates, nothing was said about Ms Guo consenting to the gates’ installation until he and Ms Guo read the papers Mr Bourke filed in court.
[27] However, Mrs Bourke denied having any conversation with Mr Xu about the steel gates. She said that until a few days before her affidavit (sworn 2 July 2016) she had not spoken with Mr Xu without Ms Guo being present. Mrs Bourke said that neither Ms Guo nor Mr Xu approached her either at the time of installation, or shortly after the steel gates were installed to say this was done without consent.
[28] Mr Bourke says that the present set of electronically controlled dual opening steel gates and the gate posts to support them were placed in exactly the same position as the wooden gate and its posts. This is confirmed by evidence from Mrs Bourke, Mr Dalton and by Mrs Craig. Mr Dalton specifically said that the gate posts for the steel gates were placed deeper but in the same holes as the posts for the wooden gate.
[29] Ms Guo had nothing to say about where the present gates are positioned in relation to the wooden gate as her evidence was that there was no wooden gate in place when she purchased lot 2. Mr Xu said nothing on this issue.
Findings on contested evidence
[30] As regards the presence of the wooden gate, I prefer the evidence of Mr and Mrs Bourke and Mr Dalton over that of Ms Guo. I find them to be credible and reliable witnesses. I was less impressed by the evidence of Ms Guo. I consider her denial of the wooden gate’s presence to be self-serving and unrealistic in the face of the strong evidence to the contrary. I am satisfied that the wooden gate was in place when Ms Guo purchased lot 2, and that it remained in place until it was removed by Mr Dalton.
[31] I do not find that Ms Guo’s denials of a discussion with Mrs Bourke and Mr Dalton regarding the replacement of the wooden gate with new gates in the same position as the wooden gate to be credible. She did not suggest that she did not understand the meaning of their discussion, she flatly denied the possibility that any such discussion had occurred. I am satisfied that the discussion occurred as outlined by Mrs Bourke and Mr Dalton, and that once Ms Guo knew it would not cost her anything she responded by expressing her agreement to Mrs Bourke’s proposal. Mr Dalton, as a contractor paid to install the gates, had no reason to lie about what transpired beforehand. At times Mrs Bourke expressed her unhappiness and exasperation with questions she was asked, nonetheless she made concessions where such were realistic and appropriate. I find her to be a truthful and reliable witness on all the issues of contested fact to which her evidence relates.
[32] I am also satisfied that at the time the steel gates were being installed, Ms Guo could not help but be aware of what was occurring. There would have been the removal of the wooden gates, followed by work placing the new gateposts in position followed by erecting the gates. Over this period of time I consider that some activity would have alerted either her or Mr Xu to what was occurring.
[33] On the topic of her absences from the property, I found Ms Guo’s evidence was exaggerated. She said she leaves her home for work at 10 am and does not return home until 11 pm or midnight, and that this was the case in 2008. She said she worked these hours seven days a week. Such hours would suggest Ms Guo would never have had the opportunity to see the gates being erected over the three
week period. However, Mrs Bourke said that from her observations Ms Guo was at lot 2 more often than she had said she was. I accept that Ms Guo may be hard working. But I cannot accept that in 2008 she was absent from her home as often as she said she was. Furthermore, if Ms Guo were in fact working those long hours, the conversation between Ms Guo, Mrs Bourke and Mr Dalton would not have been possible. I have already found that conversation took place so Ms Guo must have been home during the day for at least some of the time.
[34] The overall impression I formed of Ms Guo was that she was an obdurate witness who took untenable positions when it came to her account of the relevant events. Her account of the time she spent away from home at the time the steel gates were being installed is exaggerated, and shown to be untrue by Mrs Bourke’s evidence.
[35] Ms Guo struck me as someone who, when faced with assertions of events which were not favourable to either her view of those events or her case, simply denied their existence. In this regard she did not help herself.
[36] Nor was I impressed by Mr Xu’s evidence. One issue of concern was his statement that the question of Ms Guo’s consent to the steel gates was only raised in the legal papers filed in court. Ms Guo’s counsel did not cross-examine either Mr or Mrs Bourke on this issue. Therefore, they had no opportunity to address this issue. I consider, therefore, that I can place little if any weight on this aspect of Mr Xu’s evidence.7
[37] I am satisfied therefore that Mr Bourke, through his wife and contractor, sought and obtained Ms Guo’s consent to the installation of the steel gates before they were installed. I am also satisfied, as a result of Mrs Bourke’s concessions under cross-examination, that Ms Guo was not made aware that she would not be able to open the steel gates, which is different from when the wooden gate was in place. So to this extent only I find that Ms Guo was not fully informed about the
proposal.
7 See s 92 of the Evidence Act 2006.
[38] Whilst Ms Guo’s counsel sought to make something of Mrs Bourke not informing Ms Guo the steel gates would be permanently in place, I place little weight on this. Obviously if new gates were going to be installed, the intention would be for them to remain there.
[39] I find that the present steel gates are positioned in the same place as the wooden gate. I find the evidence of the witnesses in support of Mr Bourke to be credible and reliable in this regard. In particular, I accept the evidence of Mr Dalton who said he removed the old gate and placed the new gateposts in the same holes, only deeper than before.
The claim by Ms Guo
[40] Ms Guo seeks an order under s 313 of the Property Law Act 2007 for the removal of the steel gates. That section provides:
313Court may enforce easements and positive or restrictive covenants
(1) In determining a question or dispute concerning the existence or effect of an easement, positive covenant, or restrictive covenant, a court may make an order, on any conditions the court thinks fit, concerning all or any of the following matters:
(a) the existence of an easement, positive covenant, or restrictive covenant benefiting or burdening land:
(b) the enforceability of an easement, positive covenant, or restrictive covenant benefiting or burdening land:
(c) the question whether any work is work required to be done under the terms of an easement, positive covenant, or restrictive covenant (required work) and, if so, the nature and extent of any required work at the time in question:
(d) the reasonable and proper cost of any required work, including interest on outlay, expenses of survey, and reasonable remuneration for the superintendence or work of a person entitled or person bound who is or has been personally engaged on that work:
(e) the person or persons by whom the cost of any required work is to be borne and, if the cost is to be shared among 2 or more persons, the shares to be borne by each of them:
(f) the time at or before which, and the manner in which, any required work is to be undertaken:
(g) the entry onto any land (whether or not land over which a vehicular right of way is granted) for the purpose of doing any required work, and the use on or over that land of vehicles, aircraft, or any other means of transport, and any plant, machinery, crane, or other equipment for the purpose of carrying out that work:
(h) any other matters arising in relation to a question or dispute concerning the existence or effect of an easement, positive covenant, or restrictive covenant.
(2) This section is subject to sections 314 and 315.
[41] Ms Guo claims that the gates impede her access to 17m2 of land over which she has a right of way.
[42] Ms Guo also seeks relief for a wrongly placed structure under s 323 of the
Property Law Act. That section provides:
323 Court may grant relief for wrongly placed structure
(1) A court may grant relief for a wrongly placed structure—
(a) to any person entitled to apply for relief under section 322;
or
(b) to any other party to the proceeding for relief.
(2) The court may grant relief if the court considers it is just and equitable in the circumstances that relief should be granted.
(3) However, the court must not grant relief if the wrongly placed structure for which relief is sought is a fence and all questions or disputes concerning it can be resolved by an exercise of the jurisdiction conferred by section 24 of the Fencing Act 1978.
(4) The granting of relief does not deprive any person of any claim for damages that the person would otherwise have against any other person for any deliberate or negligent act or omission in relation to—
(a) the placing of a wrongly placed structure; or
(b) the fixing or ascertaining of any boundary of the land affected by the structure of the land intended for the structure.
(5) In making any award of damages, the court must take into account any relief granted under this section.
[43] Ms Guo claims that the gatepost and the gates themselves are constructed upon her land, albeit the part of that land which is subject to right of way B in favour of Mr Bourke, and that the effect of the gates is to impede her access to 23m2 of her own land at the back of her section.
[44] The stated grounds for the orders sought are that:
(a) The gates unreasonably prevent Ms Guo from using and enjoying the right of way.
(b) The gatepost and gates is a structure which was erected by the
Bourkes on Ms Guo’s land without her knowledge and consent.
Jurisdictional point
[45] Section 323 of the Property Law Act provides that the court may not grant relief under that section if the matter could be addressed under s 24 of the Fencing Act 1978. This raises an important jurisdictional point in respect of the relief sought by Ms Guo.
[46] Section 24 of the Fencing Act provides:
24 Jurisdiction of the court
(1) Notwithstanding that a question of title may be involved and whatever the amount involved, the court shall have jurisdiction to hear and determine all questions and disputes arising under this Act in relation to the following matters:
…
(f) the line of fence to be adopted, and the amount of compensation (if any) to be paid for loss of occupation of land and the manner of payment thereof:
…
(h) the removal of a fence that is not erected on the proper boundary:
…
(2) In any case where the court has jurisdiction under subsection (1) it may—
(a) make such consequential order as it thinks fit.
(b) enter judgment for such sum of money as it thinks fit. (3) In any such case—
(a) the court may make or enter an interim order or judgment:
(b) the order or judgment shall be deemed to be final unless it expressly states that it is an interim order or judgment, as the case may be.
[47] A fence in defined in s 2 of the Fencing Act as follows:
fence means a fence, whether or not continuous or extending along the whole boundary separating the lands of adjoining occupiers; and includes all gates, culverts, and channels that are part of or are incidental to a fence; and also includes any natural or artificial watercourse or live fence, or any ditch or channel or raised ground that serves as a dividing fence
[48] Ms Guo submitted that the Fencing Act did not apply in respect of her application, since “the essence of the definition [of a fence] is that a fence extends along a boundary between adjoining occupiers.” However, the Fencing Act clearly deals with situations where a fence which is intended to demarcate the boundary line between two properties instead encroaches unlawfully upon property beyond that boundary line. That seems to be case here.
[49] The factual findings that I have made mean that from the time the block wall between lot 1 and lot 2 was altered, with the consent of Mrs Craig who was then the owner of lot 2, this wall together with the original wooden gate across the right of ways provided a physical barrier between lot 1 and lot 2. This leads me to conclude that the wall and gate would have fallen within the definition of a fence in s 2 of the Fencing Act. The replacement of the, by then old, wooden gate in 2008 with the steel gates does not detract from the legal character of the fence, as this would constitute repair work to an existing boundary fence. When the wall and gates are viewed in this way s 24 of the Fencing Act is engaged, which means that s 323 of the Property Law Act is excluded. However, s 313 of the Property Law Act is still relevant.
Discussion
[50] Ms Guo submitted that, in accordance with Easement Certificate 375233.2, the easements over the properties at 129 and 131 Mountain Road are subject to the rights and powers set out in the Seventh Schedule to the Land Transfer Act 1952. That Schedule provides:
1 Right of Way
The full, free, uninterrupted, and unrestricted right, liberty, and privilege for the grantee, his servants, tenants, agents, workmen, licensees, and invitees (in common with the grantor, his tenants, and any other person lawfully entitled so to do) from time to time and at all times by day and by night to go pass and repass, with or without horses and domestic animals of any kind and with or without carriages, vehicles, motor vehicles, machinery, and implements of any kind, over and along the land over which the right of way is granted or created.
[51] Section 297 of the Property Law Act further provides that every grant of a vehicular right of way contains the implied covenants set out in Schedule 5 of that Act and that those covenants apply in addition to the provisions of s 90D of the Land Transfer Act (as set out in Schedule 7 above).
[52] Ms Guo submitted that the gates are an obstruction of the right of way. She submits that the relevant legal principles which apply in respect of that issue are:
(a) Any wrongful interference from a right of way constitutes a nuisance; (b) However, not every obstruction amounts to unlawful interference;
(c) No action will lie unless there is substantial [interference] with the easement granted;
(d)To justifiably complain of an obstruction, it must be clear that the obstruction is prejudicial to the grantee;
(e) The nature of the right of way, and of the place and of the particular circumstances, are relevant factors.
[53] I have no doubt that in some circumstances, the placement of a gate across a right of way may constitute an unlawful obstruction of the right of way which justifies a grant of relief.
[54] However, in light of my factual findings above, I consider that Ms Guo is estopped from exercising her rights in relation to the easement as a result of her actions in consenting to the construction of the gates. Burrows, Finn and Todd Law of Contract in New Zealand states:8
Equity has long recognised other forms of estoppel, in particular, the form often called proprietary estoppel (which itself appeared in such variations as estoppel by acquiescence and by encouragement). In essence, if A led B to believe that B was entitled to an interest in A’s land, and in reliance on this B spent money or effort on the land, perhaps in developing it, equity would sometimes grant B a remedy to avert the detriment B would suffer if A went back on that understanding. Sometimes that remedy amounted even to requiring A to recognise that B had an interest in the land. There are numerous cases of landowner A being required to recognise a right of occupation in B, or an equitable easement or licence in B, because B had been encouraged to his or her detriment in the belief that he or she was entitled to it.
[55] There are four generally accepted elements to a claim or defence of promissory estoppel:9
(a) The creation or encouragement of a belief or expectation; (b) Reliance on that belief or expectation;
(c) Detriment as a result of that reliance; and
(d)That it would be unconscionable for the party against whom the estoppel is alleged to go back on his or her word.
[56] In the recent case Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd, the
Court of Appeal held:10
8 Burrows, Finn and Todd Law of Contract in New Zealand (5th edition, LexisNexis, Wellington,
2016) at 140 – 141.
9 At 145.
10 Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd [2014] NZCA 407.
[114] The three main elements relevant to relief stem from the ingredients necessary to establish equitable estoppel in the first place. These are the quality and nature of the assurances which give rise to the claimant’s expectation; the extent and nature of the claimant’s detrimental reliance on the assurances; and the need for the claimant to show that it would be unconscionable for the promisor to depart from the assurances give.
[115] As a general approach, the clearer and more explicit the assurance is, the more likely it is that a court will be willing to grant expectation-based relief. That is because a clear assurance is more likely to engender an expectation by the promise that it will be fulfilled. Similarly, the greater the degree and consequences of detrimental reliance by the claimant, the more likely it is that the court will be prepared to hold the defendant to the promise rather than make an award (generally of a more limited nature) designed to compensate for reliance-based losses.
[116] Unconscionability is the third key consideration. As Brenna J explained in Waltons Stores unconscionability is the element which both attracts the jurisdiction of a court of equity and moulds the remedy. In assessing the appropriate remedy, all the relevant considerations are to be considered. The aim is not to satisfy the claimant’s expectation (although that may be what the relief requires in appropriate cases) but to satisfy the equity that has arisen in the claimant’s favour.
[117] While some authorities continue to refer to relief as being the minimum necessary to satisfy the equity, the emphasis in more recent cases has been on a broad consideration of the relief necessary to achieve a just and proportionate outcome.
[57] A key issue in the present case is whether there were clear words or conduct by one party which created a belief or expectation in the other. I find that Ms Guo gave her verbal consent to the construction of the gates. That fact, particularly when considered in combination with the previous existence of the wooden gate, was sufficient to create the requisite belief or expectation on the part of Mr and Mrs Bourke that Ms Guo would not enforce her rights under the easement in the future. As a result of Ms Guo’s representation, Mr Bourke has suffered a detriment, being the cost of constructing a relatively sophisticated set of gates. I consider that it is unconscionable for Ms Guo to now resile from that representation, particularly given my finding that she must have been present for the construction of the gates yet did not express any objection until well after their construction had been completed.
[58] On that basis, I consider Ms Guo is now estopped from objecting to the existence or placement of the steel gates.
[59] Mrs Bourke acknowledged that she did not inform Ms Guo that one of the gate posts would be installed on lot 2. However, I do not see this as material. The gate post was installed in 2008. By then Ms Guo had owned and occupied lot 2 for approximately two years. Despite her denials I consider that by 2008 she would have known there were wooden gates that in part were intrusions on lot 2. Ms Guo was told the steel gates and their posts would go in exactly the same place as the wooden gate and its posts. That was enough in my view to put her on notice that the new gates and posts would also intrude on lot 2 in the same way that the wooden gate and its posts did. I am satisfied that when she consented to the new gates and post being installed she knew there would be intrusion on lot 2.
[60] However, there is one difference between the present gate and the previous wooden gate. The latter could be manually opened by Ms Guo. The former cannot. I have found that when Ms Guo consented to the installation of the present gate she was not aware that they would be electronically controlled and that she would not be able to open the gate. I consider that Ms Guo is entitled to have free access to all of the right of way. In the past she would have been able to open the wooden gate in order to go to the rear end of her property using the right of way. She did not consent to the loss of that access.
[61] Accordingly, I consider that the estoppel that I find precludes Ms Guo from otherwise exercising her legal right to have the gates removed as an impediment of the easement does not preclude her from using the full extent of the easement. I therefore direct that Mr Bourke make available to Ms Guo the necessary means for her to operate the steel gate electronically for the purposes of accessing the rear end of lot 2. Ms Guo’s application is dismissed on this basis.
Result
[62] The application is dismissed. Leave is reserved to file memoranda as to costs.
Duffy J
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