Harvey v Hurley - [2000] NZCA 37

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 189/99

BETWEEN	COLIN MANSON HARVEY & MARY ELIZABETH HARVEY
Appellants

AND	MARK GORDON HURLEY, GREVILLE CHRISTOPHER NIGEL WILSON, & BRUCE ARTHUR CHRISTMAS
Respondents

Hearing:	15 February 2000
Coram:	Henry J Thomas J Tipping J
Appearances:	B P Henry and K M Elcoat for Appellants A C Sorrell for Respondents
Judgment:	2 March 2000

JUDGMENT OF THE COURT DELIVERED BY THOMAS J

Introduction

The parties to this appeal are locked in a neighbours’ dispute. They share a right of way. The appellants constructed decking and pool steps around their swimming pool. But the decking and steps, together with associated landscaping, encroach on the right of way. Moreover, the appellants have since erected a fence across part of the right of way. In the District Court they succeeded in obtaining an order that the right of way was to be amended “to conform with common-sense and the established intention of the parties when this easement was created”. It would seem that the more formal order reads: “…the right of way should be amended so that it incorporates only the yellow portion of the memorandum of transfer and not the pan part, which is the green section on Exhibit B”.
On appeal to the High Court this order was revoked.

The right of way in issue

In the High Court, Cartwright J described the relevant land in these terms:
There are three pieces of land with which this appeal is concerned.
1.Property owned by the [respondents] at 59A Beach Road, Castor Bay (“the [respondents’] property”) comprising the land in Certificate of Title 8D/1321. This land includes a narrow strip from Beach Road to the portion on which the [respondents’] house is built. The [appellants] have a right of way over this narrow strip created by Memorandum of Transfer A153410 (“the narrow strip”).
2.A small piece of land registered to the [appellants] and contained in Certificate of Title 49A/877 which together with the narrow strip described in 1. above comprises the complete right of way. The right of way begins at Beach Road and ends in a broader strip which is a buffer between the northern boundary of the [appellants’] property and the southern boundary of the [respondents’] property (“the land in CT 49A/877”). The shape has been described as a “panhandle.” The [respondents] have a right of way over this land created by transfer A153410.
3.Property on which the [appellants’] home is sited comprising the land in Certificate of Title 21D/604 (“the [appellants’] property”).
A plan incorporated in the judgment may also be repeated:

(It may be noted that the above plan does not show a separate lot which fronts on to Beach Road and which is, as far as can be discerned, part of the lot shown as lot 83 on the plan. This omission, however, does not affect the issues addressed in this appeal).

The two pieces of land which comprise the right of way can be identified from this plan. One…

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 Harvey v Hurley

Details

AGLC: Harvey v Hurley [2000] NZCA 37
Case: [2000] NZCA 37
Decision Date: 2 March 2000

CaseChat Overview and Summary

The appeal in Harvey v Hurley concerns a dispute between neighbours over the use of a right of way. The appellants, Colin Manson Harvey and Mary Elizabeth Harvey, constructed decking and pool steps on their property which encroached upon the right of way, and subsequently erected a fence across part of the right of way. The respondents, Mark Gordon Hurley, Greville Christopher Nigel Wilson, and Bruce Arthur Christmas, sought to enforce their rights under the easement. The appellants argued that the right of way did not include the "pan" area and that they were entitled to its full use. Alternatively, they sought an order modifying the right of way. The respondents sought the removal of the encroaching works.

The primary legal issues before the court were whether the right of way included the "pan" area and whether the court had the jurisdiction to modify or extinguish the easement under s 126G of the Property Law Act 1952. The court had to determine the nature of the grant and the rights conferred by the easement, and whether the continued existence of the easement impeded the reasonable use of the land subject to the easement. The court also had to consider the exercise of its discretion under s 126G and whether the proposed modification or extinguishment would substantially injure the persons entitled to the benefit of the easement or covenant.

The Court of Appeal held that the easement created by the Memorandum of Transfer was definite in its terms and that the right of way included the "pan" area. The court rejected the appellants' argument that the right of way was "undefined" and that the right to "go pass and repass" did not embrace the right to turn a vehicle on the land. The court also held that the continued existence of the easement did not impede the reasonable use of the land subject to the easement in a different manner or to a different extent from that which could have been reasonably foreseen by the original parties. Consequently, the court had no jurisdiction to exercise the power to modify or extinguish the right of way. The appeal was dismissed, and the cross appeal was also dismissed. Costs in this Court were awarded to the respondent in the sum of $5,000, together with disbursements.

The Court of Appeal's decision reinforces the importance of the principle of indefeasibility of title and the need to examine the documents constructively placed before one's eyes. The court held that the rights conferred by the instrument creating the easement are well settled under the Land Transfer Act and the Property Law Act and that there is no need to go behind the clear language of the conveyance. The court also held that the continued existence of the easement does not impede the reasonable use of the land subject to the easement in a different manner or to a different extent from that which could have been reasonably foreseen by the original parties. The court's decision highlights the importance of the parties' intentions at the time the right of way was created and the need to respect the terms of the grant.

Orders