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| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA342/2019 [2020] NZCA 309 |
| BETWEEN | INFINITY ENTERPRISES NZ LIMITED |
| AND | KINARA TRUSTEE LIMITED |
| Hearing: | 27 November 2019 |
Court: | Cooper, Clifford and Stevens JJ |
Counsel: | C L Bryant and A C Eager for Appellant |
Judgment: | 27 July 2020 at 2.30 pm |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe cross-appeal is dismissed.
CThe question of costs is reserved pending further submissions from the parties, a timetable for which is set out at [131].
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Table of Contents
Introduction [1]
Context — Factual [6]
A preliminary comment [6]
1985–1986: The original subdivision [7]
1986–1987: The road widening subdivision [12]
1989–1991: The BP subdivision [18]
Subsequent events [24]726 Great South [25]
12 Lakewood [26]
8 Lakewood [28]
The Driveway [31]
Context — Legal [33]
Indefeasibility [33]
Fraud [37]
Claims in personam [40]
Our approach to this appeal [44]
Was the Judge correct to find Kinara had not established Infinity
took title with LTA fraud? [49]
Was an easement created by implied grant in 1989? [51]
Was the Judge correct to find Kinara was required to prove fraud
by each intermediate owner? [58]
Did Infinity take title with LTA fraud? [65]Kinara’s formulation of fraud [65]
The evidence of Infinity’s fraud [85]
Was the Judge correct to find Infinity was estopped from
denying Kinara its use of the Driveway? [98]
Estoppel by silence: the correct approach [98]
Constructive knowledge a bar to an estoppel — the law [105]
Did Kinara have constructive knowledge that no legal right of
way existed? [113]
If not precluded by LTA constructive knowledge, did the
circumstances give rise to the estoppel the Judge recognised? [119]
Result [130]
Introduction
This appeal concerns the legal status of part of a driveway (the Driveway) which provides one-way access from Redoubt Road in Manukau to three adjoining properties: first, to 12 Lakewood Court; then over 12 Lakewood to 8 Lakewood Court; and finally, over 8 Lakewood to 726 Great South Road. We refer to those three properties individually by their street address and collectively as “the Properties”.
12 Lakewood, 8 Lakewood and 726 Great South are owned respectively by the appellant, Infinity Enterprises NZ Ltd (Infinity); a non-party, Lakewood Plaza Ltd (Lakewood Plaza); and the respondent, Kinara Trustee Ltd (Kinara).
The Driveway has existed for a considerable period of time. 726 Great South has the benefit, pursuant to a registered easement, of a legal right of way entitling it to use the Driveway where it passes over 8 Lakewood. Neither 726 Great South nor 8 Lakewood have the benefit, however, of a legal right of way entitling them to use the part of the Driveway which passes over 12 Lakewood. That is, no such right of way is recorded on the title to 12 Lakewood.…
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- Case
- [2020] NZCA 309
- Decision Date
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