Kingsbeer v Okey - [2024] NZHC 3582

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2024-454-010

[2024] NZHC 3582

UNDER the Property Law Act 2007

IN THE MATTER OF

an easement at Cessna Place, Palmerston North

BETWEEN

PAULINE ANNE KINGSBEER and

BERNADETTE PLAW as trustees of THE PAK TRUST
Applicants

AND

RONALD GORDON OKEY and MCKENZIE MCPHAIL CORPORATE TRUSTEES LIMITED

Respondents

Hearing: 21 November 2024

Counsel:

A S Butler KC for Applicants

J K Mahuta-Coyle for Respondents

Judgment:

27 November 2024

JUDGMENT OF GRAU J

[Costs decision]

Costs following a successful application to extinguish an easement

[1] On 20 August 2024, I granted an application to extinguish the equitable right of way easement over a roadway at Cessna Place, Palmerston North.1 The background to the proceeding was set out in my decision as follows:2

[1] This proceeding, the latest instalment in a long-running dispute, is an application under the Property Law Act 2007 (PLA) for an order extinguishing

1 Kingsbeer v Okey [2024] NZHC 2323.
2 At [1]–[2] (footnotes omitted).

KINGSBEER v OKEY [COSTS] [2024] NZHC 3582 [27 November 2024]

an easement over a roadway in Palmerston North. The roadway is on the applicants’ property and the respondents have had the benefit of the easement since 1986. The roadway has been extensively damaged and continues to deteriorate. The respondents are largely responsible for that damage, caused by heavy vehicles accessing one of the respondent’s (Mr Okey’s) and his tenant’s businesses.

[2] In 2017, the High Court found the easement was invalid and, in the alternative, extinguished it. Later the same year, the Court of Appeal overturned that decision, finding that an equitable easement had been in place since 1986 and no grounds for extinguishment were made out. The Court of Appeal, however, ordered the respondents to pay 75 per cent and the applicants 25 per cent of the costs to upgrade the roadway. In 2024, some six- and-a-half years later, the roadway has still not been upgraded, nor has any proposal for upgrading even been agreed to. That state of affairs remains despite the parties twice returning to the High Court and consenting to orders under s 313 of the PLA to bring their dispute to an end, and despite a judicial warning that a failure by the respondents to act in accordance with the Court of Appeal’s judgment could lead to another application to extinguish the easement.

[2] I found three grounds for extinguishment had been made out—under ss 317(1)(a)(iii), (1)(b), and (1)(d) of the Property Law Act 2007 (the PLA)—but not a fourth (s 317(1)(a)(i)).3 I exercised my discretion to extinguish the easement and I declined to award compensation to the respondents.4

[3] As to the issue of costs, I noted the general principle that costs in civil litigation follow the event does not apply in proceedings brought under s 317 of the PLA where the unsuccessful party opposed extinguishment or modification, and so the question for the Court on costs was whether…

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 Kingsbeer v Okey

Details

AGLC: Kingsbeer v Okey [2024] NZHC 3582
Case: [2024] NZHC 3582
Decision Date: 27 November 2024

CaseChat Overview and Summary

In Kingsbeer v Okey, the High Court of New Zealand addressed an application to extinguish an easement over a roadway in Palmerston North, which was heavily damaged by the respondents' heavy vehicles. The applicants sought to extinguish the easement under the Property Law Act 2007, given the respondents' failure to comply with previous court orders to upgrade the roadway. After finding that grounds for extinguishment had been made out, the Court turned to the issue of costs. The applicants argued that the respondents should pay costs due to their unreasonable conduct since 2017, while the respondents contended that their opposition was bona fide and that costs should lie where they fall.

The Court considered the general principle that costs in civil litigation follow the event but noted that this principle does not apply in proceedings brought under s 317 of the PLA where the unsuccessful party opposed extinguishment or modification. The Court held that the respondents did not act unreasonably during the current proceedings but had acted unreasonably since 2017, leading to the necessity of the application to extinguish the easement. The Court found that immunising the respondents from costs would provide no incentive for them to engage with the applicants' concerns and comply with court orders. The Court also noted the constitutional importance of parties complying with court orders and the potential disrespect of legal obligations and the rule of law when parties choose to do nothing despite court-ordered agreements.

The Court concluded that, given the unique circumstances of the case, the respondents should pay costs to the applicants. However, the Court decided against awarding increased costs, as the respondents did not act unreasonably during the proceedings, were not entirely unsuccessful, and the Court departed from the orthodox position on costs in s 317 cases. The Court ordered the respondents to pay costs to the applicants on a 2B basis.

Orders