Guo v Bourke - [2016] NZHC 2240

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 Respondent

Judgment:

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,…

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 Guo v Bourke

Details

AGLC: Guo v Bourke [2016] NZHC 2240
Case: [2016] NZHC 2240
Decision Date: 22 September 2016

CaseChat Overview and Summary

Guo v Bourke is an originating application brought by Qinyang Guo against Gary Bourke and Benjamin Tothill. Ms Guo claims that the respondents have obstructed her right of way with dual opening steel gates and that they have encroached on her land with landscaping. The respondents counterclaim that Ms Guo has encroached on their land with landscaping. The dispute revolves around a single driveway that services both properties, over which both parties have easements. The case involves factual disputes over whether Ms Guo consented to the installation of the gates, and whether the landscaping encroaches on either property. The court found in favour of the respondents on all factual issues, accepting that Ms Guo had consented to the installation of the gates and that the landscaping does not encroach on either property. The court found that Ms Guo is estopped from objecting to the gates, but that she is entitled to use the full extent of her easement. Accordingly, the court ordered that Mr Bourke must provide Ms Guo with the means to operate the steel gates. The application was dismissed.

Orders