Hill v Elimelech - [2018] NZHC 449

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2017-485-811

[2018] NZHC 449

BETWEEN
JANIS LYNNE HILL AND GRAHAM JOHN TICKLE

Appellants

AND

SIMANTOV ELIMELECH, EFRAT DORON LOCATI AND TRAFALGAR TRUSTEE CORPORATION LIMITED

First Respondents

AND

MARJORIE LENORA JONES, GRAEME MICHAEL JONES AND PUBLIC TRUST

Second Respondents

AND

BEVAN JAMES HOLLOWAY AND NICOLA LOIS HOLTOM

Third Respondents

Hearing: 14 February 2018

Appearances:

P S J Withnall for Appellant R Stewart for Respondent

Judgment:

15 March 2018

JUDGMENT OF GRICE J

[1] This is an appeal from a judgment of the District Court dated 1 September 2017 in which proceedings were stayed by the Judge due to the function of an implied dispute resolution clause in an easement instrument.1

[2]The background to the dispute is set out in the decision of the District Court:2

1 Hill v Elimelch [2017] NZDC 17227.
2 At [1]-[4].
HILL AND TICKLE v ELIMELECH, LOCATI AND TRAFALGAR TRUSTEE CORPORATION LIMITED [2018] NZHC 449 [15 March 2018]

[1] A shared vehicle access way in Whitby is subject to a registered right of way easement in favour of the applicants’ land at 32 Flotilla Place and in favour of the first, second and third respondents’ land at 30 Flotilla Place, 35 Flotilla Place and 31 Flotilla Place respectively.

[2] A dispute has arisen between the parties who have a registered interest under the easement regarding the use of the shared vehicle access way that I will refer to as Lot 201.

The substantive dispute

[3] The applicants claim the right of way created by Easement Instrument 9408783.7 (the Registered Easement) contains the rights and powers implied in the vehicular rights of way by Schedule 5 of the Property Law Act 2007 (the PLA).

[4] The applicants assert the rights conferred by the right of way easement are the usual rights to cross back and forth over Lot 201 and no more. The applicants assert there is no right to remain stationary, other than momentarily, to park vehicles or to leave any other items such as trailers anywhere on Lot 201, which includes the kerb and grass area adjacent to the access way.

[3] The District Court Judge found that a dispute resolution clause was implied into the easement instrument by virtue of the function of cl 14, sch 4, of the Land Transfer Regulations 2002. The dispute resolution clause operated as an Arbitration Agreement and so entitled the respondents to a stay of the proceedings. 3

[4] It is common ground that if the dispute resolution clause had been engaged, it would entitle the respondents to a stay of these proceedings.4

Grounds of Appeal

[5] The appellants advance two grounds of appeal. These are that the Judge erred in:

(a)finding the appellants did not have a choice to bring the proceedings in the District Court under s 313 of the Property Law Act in respect of their rights under Schedule 5, due to the Judge’s interpretation of the registered…

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 Hill v Elimelech

Details

AGLC: Hill v Elimelech [2018] NZHC 449
Case: [2018] NZHC 449
Decision Date: 15 March 2018

CaseChat Overview and Summary

The appeal in Hill v Elimelech concerns the interpretation of a registered easement instrument that includes an implied dispute resolution clause. The appellants argued that the clause did not apply to them and that they could bring the proceedings in the District Court. The District Court found that the clause applied and stayed the proceedings. The appeal was dismissed by Justice Grice. The Court found that the dispute resolution clause was implied into the easement instrument by virtue of the function of the Land Transfer Regulations 2002. The Court rejected the appellants' argument that they could choose to exclude the operation of the clause. The Court also found that the fact that the easement was over an "access lot" did not allow the appellants to choose to bring the action in the District Court. The Court awarded costs to the respondents on a category 2B basis.

Orders