Infinity Enterprises NZ Ltd v Kinara Trustee Ltd

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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 Appellant
AND	KINARA TRUSTEE LIMITED Respondent

Hearing:	27 November 2019
Court:	Cooper, Clifford and Stevens JJ
Counsel:	C L Bryant and A C Eager for Appellant A R B Barker QC and L R Green for Respondent
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

1. 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”. 

2. 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). 

3. 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.…