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Kingsbeer v Okey

Kingsbeer v Okey

Case [2024] NZHC 2323 20 August 2024

Easements

Modification or Extinguishment of Easements

Impediment to Reasonable Use

No Substantial Injury

Property Law

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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 2323

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: 10 July 2024

Counsel:

A S Butler KC, S Fletcher and D Qiu for Applicants J K Mahuta-Coyle for Respondents

Judgment:

20 August 2024

JUDGMENT OF GRAU J

Table of Contents

A right of way gone wrong [1]

Background facts [5]

The roadway and the parties [5]

2017: Ms Kingsbeer seeks to extinguish the easement [14]

The Court of Appeal’s orders [16]

2018: back to the High Court to implement the orders [23]

2019: back to the High Court for consent orders [28]

The consent orders are not implemented [30]

KINGSBEER v OKEY [2024] NZHC 2323 [20 August 2024]

2022: back to the High Court for amended consent orders [37]
A resolution remains incapable of being achieved [39]

The legal landscape [44]

Discussion [54]

Change in nature or extent of use: s 317(1)(a)(i) [54]

Other relevant circumstances: s 317(1)(a)(iii) [59]

Impediment to reasonable use: s 317(1)(b) [71]

No substantial injury: s 317(1)(a)(d) [77]

The discretion [85]

Compensation [90]

Injunctive relief [95]

Result and costs [98]

A right of way gone wrong

[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 an easement over a roadway in Palmerston North.1 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.2 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.3 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.4 In 2024, some six-and-a-half years later, the roadway has still not been

1      More accurately it is an equitable easement because it was never registered on the certificate of title. I also not that Cessna Place is sometimes referred to in evidence as “Cessna Road”.
2      Kingsbeer v Okey [2017] NZHC 57 [Cull J’s Decision].
3      Okey v Kingsbeer [2017] NZCA 625, (2017) 19 NZCPR 25 [Court of Appeal Decision].
4 At [81].

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…

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 2323
Case: [2024] NZHC 2323
Decision Date: 20 August 2024

CaseChat Overview and Summary

Pauline Anne Kingsbeer and Bernadette Plaw as trustees of the PAK Trust (the applicants) are seeking to extinguish an equitable easement over a roadway on property owned by the applicants, on the basis that the respondents, Ronald Gordon Okey and McKenzie McPhail Corporate Trustees Limited (the respondents), have failed to comply with Court orders to upgrade the roadway, leading to increased costs and damage to the roadway. The Court found that the respondents had deliberately delayed and obstructed the applicants’ efforts to upgrade the roadway, leading to increased costs and damage. The Court found that the respondents' actions had caused the applicants substantial injury and that extinguishment of the easement was necessary to prevent further damage. The Court granted the applicants' application to extinguish the easement and declined to award compensation to the respondents. The Court also declined to grant an injunction to prevent the respondents from using the roadway until it had been repaired and upgraded. The parties were directed to attempt to agree on costs, and if they were unable to do so, they were required to file costs memoranda within a specified timeframe.

Orders