Hajnal v Asmussen - [2010] NZCA 410

IN THE COURT OF APPEAL OF NEW ZEALAND
CA539/2009
[2010] NZCA 410
BETWEENLASZLO HAJNAL AND MILA RELICH
Appellants

ANDJONAS REINHOLD ASMUSSEN
First Respondent
ANDNELSON CITY COUNCIL
Second Respondent
ANDGLENYS ANN SCHOFIELD
Third Respondent
ANDPAUL DONALD GALLOWAY AND ZAHANE RUTH GALLOWAY
Fourth Respondents
ANDADRIAN HEINZ STUDER
Fifth Respondent

Hearing:16 August 2010

Court:Arnold, Venning and Simon France JJ
Counsel:J O Upton QC for Appellants
J Fitchett for First Respondent
No Appearance for other Respondents

Judgment:9 September 2010 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed, but in respect of the quantum of compensation only. The High Court award of $35,000 is increased to $50,000.

B        In all other respects the appeal and cross‑appeal are dismissed.
C        There is no order for costs.
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REASONS OF THE COURT
(Given by Simon France J)
Introduction
[1]       The appellants and the first respondent are neighbours. They share a common driveway which runs across the face of, and over the land of, the lower property, “136”, owned by the appellants. It then carries on to the higher property, “142”, owned by Mr Asmussen. Prior to these proceedings, there was no formal easement or right of way protecting 142’s use of the driveway. Successive owners of 142 had been using the driveway for more than 50 years.
[2]       The High Court has granted Mr Asmussen’s application for relief under 129B of the Property Law Act 1952.[1] Having rejected as unreasonable alternative ways of obtaining vehicular access for 142, Wild J directed that a right of way reflecting the existing driveway be registered. Mr Asmussen was ordered to pay Mr Hajnal and Ms Relich $35,000 compensation.
[1]Asmussen v Hajnal HC Nelson CIV-2004-442-148, 6 August 2009.
[3]       Mr Hajnal[2] appeals the decision to legalise the existing driveway. He says the Court should have opted for an alternative route which he had proposed, and for which he had already obtained council consent. It is submitted that Wild J erred in concluding that this option was unreasonable. Both parties also appeal the quantum of the compensation award.
[2]Mr Hajnal appeared on behalf of the appellants in the High Court proceeding. He has had superintendence of this drawn out saga on behalf of the appellants and it is convenient to refer to him as a shorthand for the appellants.
[4]       Formally the challenge is to the conclusion that the land is landlocked. It is a limited challenge, however, in that it is said that what is known as the “S‑bend proposal”, which does not cross 136, is a reasonable alternative way of giving 142 vehicular access. If it is not reasonable, it is not argued that relief in the form of legalising the existing driveway was incorrect. Although at various times there have been other options considered, the matter has now resolved itself to either the S‑bend proposal or the existing driveway.
Fuller Facts
[5]       There was an initial hearing in late 2004 before Wild J. At the conclusion of that, his Honour held that without vehicular access…

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 Hajnal v Asmussen

Details

AGLC: Hajnal v Asmussen [2010] NZCA 410
Case: [2010] NZCA 410
Decision Date: 9 September 2010

CaseChat Overview and Summary

Hajnal v Asmussen was an appeal from a decision of Wild J in the High Court, which granted Mr Asmussen’s application for relief under s 129B of the Property Law Act 1952. The lower property, “136”, is owned by Mr Hajnal and Ms Relich, and the higher property, “142”, is owned by Mr Asmussen. The two properties share a common driveway over 136, which has been used by 142 for more than 50 years. Prior to this litigation, there was no formal easement or right of way protecting 142’s use of the driveway. The High Court ordered that a right of way reflecting the existing driveway be registered, and that Mr Asmussen pay Mr Hajnal and Ms Relich $35,000 compensation. The appeal was limited to two issues: whether the S-bend proposal was a reasonable alternative to the existing driveway; and the quantum of compensation. The first issue turned on whether the S-bend proposal was reasonable. This required an assessment of cost, practicality and visual impact. The cost of the S-bend proposal was deemed unreasonable, at least $150,000, especially given the property was valued at $305,000. Practicality was also an issue. The valuer described the S-bend proposal as reasonable access, but also testified that no one would contemplate reversing down it, it was like a parking building “where you are going on a tight spiral wondering where your nose and tail are”, some people would find it nerve wracking to drive on it, and it would affect the saleability of the property. Visual impact was largely a red herring. The second issue was the quantum of compensation. The appeals on this point were allowed. The appeal by Mr Hajnal and Ms Relich was allowed because the $35,000 compensation award was insufficient. The compensation award was increased to $50,000. The appeal is allowed, but in respect of the quantum of compensation only. The High Court award of $35,000 is increased to $50,000. In all other respects the appeal and cross-appeal are dismissed. There is no order for costs.

Orders