Kingsbeer v Okey - [2017] NZHC 57

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2013-454-458 [2017] NZHC 57

BETWEEN
PAULINE ANNE KINGSBEER AND

BERNADETTE PLAW AS TRUSTEES OF THE PAK TRUST

Plaintiffs

AND

RONALD GORDON OKEY First Defendant

AND

MCKENZIE MCPHAIL CORPORATE TRUSTEES LIMITED

Second Defendant

Hearing: 26, 27 and 28 September 2016

Appearances:

C J Tennet and R P Strachan for Plaintiffs
J G Toebes and N J G Smith for Defendants

Judgment:

1 February 2017

JUDGMENT OF CULL J

Introduction

[1] This case concerns a $1 unregistered right of way easement, giving access to industrial land, by way of a sealed private driveway (Cessna Place). Ms Kingsbeer, on behalf of the plaintiffs, seeks an order extinguishing the equitable grant of easement dated 13 July 2009. In the alternative, Ms Kingsbeer seeks an order that the defendants (the Okey interests) pay the total costs of bringing the access way up to Palmerston North City Council (the Council) standards and pay the continuing
repair and maintenance costs associated with their use of it.

KINGSBEER v OKEY [2017] NZHC 57 [1 February 2017]

Background

[2] Ms Pauline Kingsbeer and Ms Bernadette Plaw are the trustees of a Trust known as the PAK Trust (the Trust). The Trust is the owner of a rural property situated at Cessna Road, Palmerston North, which I will refer to as the Trust land.

[3] The Trust land was owned by the late Mr Don Kingsbeer until his death on

18 January 2012. Ms Pauline Kingsbeer is Mr Kingsbeer’s daughter, and she is the

sole beneficiary under his last will.

[4] Following the late Mr Kingsbeer’s death, the Trust land was transmitted to his executor and trustee, the Public Trustee, and the Public Trustee conveyed the Trust land to Ms Pauline Kingsbeer in accordance with the terms of the deceased’s will. Ms Pauline Kingsbeer subsequently transferred the Trust land to the Trust.

[5] The Okey interests are the owners of an industrial property which has a common boundary with the Trust land. I will refer to it as the Okey land.

[6] The Okey interests say that they purchased the Okey land from the late Mr Kingsbeer in the early 1980s, and that over the ensuing years an informal arrangement existed between them under which a private road (Cessna Place) on the Trust land was used to provide vehicular access to the Okey land. Ms Kingsbeer says that the driveway existed before 1986 and was not created for the intended agreement between the parties. Approximately 22 years ago Cessna Place was sealed with an asphalt concrete surface, to replace the previously unsealed metal surface. The Okey interests and Mr Kingsbeer shared the cost of the maintenance of Cessna Place equally.

[7] There is direct legal access from Cessna Road, a legal road, onto the Kingsbeer land and the Okey land by virtue of two registered easements named “R” (belonging to Ms Kingsbeer) and “T” (belonging to the Okey interests). Those registered easements enable each of the parties to have direct…

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 [2017] NZHC 57
Case: [2017] NZHC 57
Decision Date: 1 February 2017

CaseChat Overview and Summary

The High Court of New Zealand considered a dispute between Pauline Anne Kingsbeer, on behalf of the PAK Trust, and Ronald Gordon Okey, regarding an unregistered right of way easement over Cessna Place, a sealed private driveway on the Trust land, providing access to industrial land owned by the Okey interests. The Kingsbeer parties sought an order to extinguish the equitable grant of easement dated 13 July 2009, or alternatively, an order that the Okey interests pay the costs of bringing the access way up to Palmerston North City Council standards and pay the continuing repair and maintenance costs associated with their use of it. The Court held that the grant of easement was invalid under s 348(1) of the Local Government Act, as it was made without the prior permission of the Council. The Court further held that the equitable grant of easement should be extinguished under s 317 of the Property Law Act 2007, because of the change of circumstances in use since the grant of easement on 16 July 2009, resulting in disproportionate disadvantage to the plaintiffs. The effect of the extinguishment of the easement is to take effect six weeks from the date of this decision. Costs were awarded to the plaintiffs on a 2B basis.

Orders