Kinara Trustee Ltd v Infinity Enterprises NZ Ltd - [2019] NZHC 1526

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-2145

[2019] NZHC 1526

BETWEEN
KINARA TRUSTEE LTD

Plaintiff

AND

INFINITY ENTERPRISES NZ LTD

Defendant

Hearing: 23-26 October 2018, 1 November 2018

Counsel:

A Barker QC & J Zwi for Plaintiff

N Penman-Chambers & A Eager for Defendant

Judgment:

1 July 2019

JUDGMENT OF DUFFY J

This judgment was delivered by me on 1 July 2019 at 4.45 pm pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:
Murdoch Price, Botany Junction, Manukau Andrew Barker QC, Auckland
Hesketh Henry, Auckland

KINARA TRUSTEE LTD v INFINITY ENTERPRISES NZ LTD [2019] NZHC 1526 [1 July 2019]

[1] The plaintiff, Kinara Trustee Ltd (“Kinara”), claims it is entitled to use an unregistered accessway that crosses land owned by the defendant, Infinity Enterprise NZ Ltd (“Infinity”). This accessway allows Kinara and persons wanting to visit its commercial property to have ingress to this property from Redoubt Road, Manukau.

[2] Kinara contends the accessway is either an equitable easement or, alternatively, that Infinity’s conduct over the past 10 years has given Kinara rights in equity that entitle Kinara to use this accessway. It is not the only means of ingress to Kinara’s property, but it is the only means of such access from Redoubt Road, which has a beneficial value for Kinara.

[3] Infinity refuses to recognise Kinara’s right to use the disputed accessway, despite Infinity having taken no steps until now to deny others, including Kinara, use of the disputed accessway. Hence this proceeding.

[4] Kinara seeks relief in the form of orders that will compel Infinity to recognise Kinara’s right to use the disputed right of way, and to take the necessary steps to enable its registration as an easement on their respective titles.

[5] The disputed accessway was in use long before either Kinara or Infinity acquired their respective blocks of land. Its informal character is likely to be the result of a legal error by solicitors responsible for preparing the original subdivision plan and the titles of the subject lots. However, this is of little comfort to either Kinara or Infinity as both must now deal with the problem the error has created for them.

[6] Kinara claims it can use the accessway because either it is an equitable easement by implied grant, which was created at the time the subject lots first passed out of common ownership, or through the law of equitable estoppel.

[7]The essential questions in issue are:

(a)whether an unregistered equitable easement, which was created at the time the subject lots first passed out of common ownership, still exists and is enforceable against Infinity as present owner of the purported

servient land, despite the earlier transfers of its ownership; and in the alternative

(b)whether Infinity’s conduct after it acquired this land, has created rights of use by Kinara, under the law of equitable estoppel, which can require Infinity to register those rights on its…

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.

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Details

Case: [2019] NZHC 1526
Decision Date: 1 July 2019

CaseChat Overview and Summary

Kinara Trustee Ltd is seeking to establish that it has a right of way over Infinity Enterprises NZ Ltd’s property. Kinara contends that it is entitled to use an unregistered accessway that crosses land owned by Infinity. The accessway allows Kinara and persons wanting to visit its commercial property to have ingress to this property from Redoubt Road, Manukau. Infinity refuses to recognise Kinara’s right to use the disputed accessway. Kinara claims it can use the accessway because either it is an equitable easement by implied grant, which was created at the time the subject lots first passed out of common ownership, or through the law of equitable estoppel. The essential questions in issue are whether an unregistered equitable easement by implied grant still exists and is enforceable against Infinity and whether Infinity’s conduct has created rights of use by Kinara, under the law of equitable estoppel. The Court found that Kinara had no enforceable equitable easement by implied grant over Infinity’s land. However, the Court was satisfied that because of Infinity’s conduct after it acquired its land Kinara has acquired rights under the law of equitable estoppel, which now require Infinity to register the accessway on its title as an easement. The Court granted Kinara relief in the form of a declaration that it is entitled to cross Infinity’s land using the accessway, an order directing Infinity to take all necessary steps to have the accessway recorded as a legal easement against the certificate of title of Lot 4/12 Lakewood Court and an order directing Infinity to take all reasonable and necessary steps to obtain the consent of its mortgagee. The parties have leave to file memoranda on costs.

Orders