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Hamilton v Fox

Hamilton v Fox

Case [2025] NZCA 578 31 October 2025

Jurisdiction

Compensatory Damages

Unjust Enrichment

Admissibility of Evidence

Appeal

Property Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA637/2024
[2025] NZCA 578

BETWEEN

LISEL BRITTA HAMILTON
Appellant

AND

HENRY ALLAN FOX AND MARIE PATRICIA MUHL
First Respondents

NATHALIE FREDERIQUE GIRAUDON AND EMMANUEL STAUDER
Second Respondents

JONATHAN ROBERT SMITH, BEVERLEY ANN WALLS AND PETER MARK WALLS AS TRUSTEES OF THE P M & B A WALLS FAMILY TRUST
Third Respondents

MICHELLE HELEN SNAPE
Fourth Respondent

PHILIP LAURENCE LEES
Fifth Respondent

DONALD GORDON MICHAEL AND KAREN HILDA MICHAEL AS TRUSTEES OF THE K & G MICHAEL FAMILY TRUST
Sixth Respondents

Hearing:	21 May 2025
Court:	Hinton, van Bohemen and Cull JJ
Counsel:	M J Tingey for Appellant J M Hanning and T C Daley for Respondents
Judgment:	31 October 2025 at 12:00 pm

JUDGMENT OF THE COURT

AThe respondents’ application to adduce further evidence is granted.
BThe appeal is allowed to the extent that the sum awarded for compensation is increased from $10,529.74 to $50,000.
CThe appeal is otherwise dismissed.
DThe respondents must pay to the appellant one set of costs for a standard appeal on a band A basis, reduced by 50 per cent, together with usual disbursements.
E Costs in the High Court are to be determined by that Court in light of this judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Hinton J)

This appeal relates to an application for access to landlocked land under s 328 of the Property Law Act 2007 (the Act). On 30 August 2024, the High Court made orders granting access to hillside properties owned by the respondents in Wainui Main Road, French Farm, Canterbury via a driveway, that had been used by the respondents for some years and at its start passed over the lower portion of the appellant’s property.[1] After the appellant purchased her property she identified that the driveway was not within easements granted by her predecessors some years before and took issue with the respondents’ access. The High Court ordered access on the condition that the respondents pay the appellant the sum of $10,529.74 as compensation.[2]
[1]Fox v Hamilton [2024] NZHC 2479, (2024) 25 NZCPR 792 [judgment under appeal] at [57].
[2]At [57(e)].
By the time of the High Court hearing the appellant did not dispute either that the respondents’ properties were landlocked or that the proposed right of way easements would provide reasonable access to those properties.[3] The orders sought had been opposed both in the appellant’s notice of opposition and in written submissions, but the opposition was withdrawn prior to the hearing.[4] The judgment therefore focused entirely on the issue of compensation.[5]

The appeal

[3]At [7]–[9].

[4]At [8].

[5]At [9].

The appellant appeals on two grounds. First, she says that the High Court had no jurisdiction to make the orders, as the easements granted in the judgment did not unlock the respondents’ properties. Rather it gave them access to either private land over which the respondents have no right of access, or gave them access to a “road…

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 Hamilton v Fox

Details

AGLC: Hamilton v Fox [2025] NZCA 578
Case: [2025] NZCA 578
Decision Date: 31 October 2025 at 12:00 pm

CaseChat Overview and Summary

This appeal concerns an application for access to landlocked land under section 328 of the Property Law Act 2007. The appellant, Lisel Britta Hamilton, sought to appeal the decision of the High Court that granted access to the respondents over her property. The appeal focused on two grounds: the jurisdiction of the High Court to make the orders, and the reasonableness of the compensation awarded. The respondents were various property owners in Wainui Main Road, French Farm, Canterbury, who had been using a driveway across the appellant's property for some years.

The Court of Appeal first considered the issue of jurisdiction. The appellant argued that the easements granted by the High Court did not unlock the respondents' properties but instead provided access to either private land or a "road reserve" which the respondents did not have the right to access. The Court examined the evidence on the face of the record, including a Site Survey Plan and land titles register, and found that the easements did provide access to a public road, thereby granting reasonable access to the respondents' properties. The Court therefore upheld the High Court's jurisdiction.

Next, the Court turned to the issue of compensation. The appellant argued that the sum of $10,529.74 awarded by the High Court was not reasonable, and that it should have been at least $66,000. The Court noted that compensation is discretionary and that the amount should reflect what a willing buyer and willing seller would agree to in a friendly negotiation. The Court found that the Judge had not appropriately considered the increased value of the respondents' properties from obtaining legal access. The Court considered the evidence provided by the respondents and concluded that a fair sum of compensation would be $50,000.

The Court allowed the respondents' application to adduce further evidence and granted the appeal to the extent of increasing the compensation award to $50,000. The appeal was otherwise dismissed. The respondents were ordered to pay the appellant one set of costs for a standard appeal on a band A basis, reduced by 50 per cent, together with usual disbursements. Costs in the High Court were to be determined by that Court in light of this judgment.

Orders