Kiwi Trustee Limited v Lin - [2017] NZHC 108

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2 [2017] NZHC 108

UNDER
the Property Law Act 2007 and the

Declaratory Judgments Act 1908

IN THE MATTER OF

an application to determine and enforce an easement, both legal and equitable, and for resulting claim in nuisance both for diminution in value and consequential and foreseeable losses

BETWEEN

KIWI TRUSTEE LIMITED Plaintiff

AND

QING LIN
First Defendant

SCOTT THOMAS NABARRO Second Defendant

Hearing: 7 February 2017

Appearances:

P F Chambers for the Plaintiff
K Davenport QC for the Defendants

Judgment:

7 February 2017

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Henley-Smith Law (Mark Henley-Smith), Glen Eden, Auckland, for Plaintiff
Lewis Callinan (Rowena Lewis), Browns Bay, Auckland, for Defendants

Counsel:
P F Chambers, Auckland, for Plaintiff
K Davenport QC, Auckland, for Defendants

KIWI TRUSTEE LIMITED v QING LIN [2017] NZHC 108 [7 February 2017]

[1] The plaintiff applies under r 8.19 of the High Court Rules for discovery of one document, an agreement under which the first defendant sold a property at
1331 State Highway 16, Reweti, to Campsites Trustees Ltd. The defendants resist disclosure on the ground that the document is not relevant.

[2] In Kiwi Trustee Ltd v Lin I dealt with Kiwi Trustee Ltd’s application to sustain a caveat it had lodged against Ms Lin’s property at 1331 State Highway 16 in support of its equitable easements.1 That decision gives a background to this proceeding. Kiwi Trustee Ltd owns a 8 hectare property at 1343 State Highway 16, Reweti. Mrs S Hart is a director of Kiwi Trustee Ltd. Ms Lin bought the neighbouring 72 hectare property at 1331 State Highway 16. The former owner of
Ms Lin’s property is Mr Hart, Mrs Hart’s husband. Ms Lin became the registered proprietor in June 2013 as purchaser from a mortgagee exercising its power of sale. The 1331 property is subject to two registered easements, for which Kiwi Trustee’s property is the dominant tenement. One easement was created in 1974 and the second in 1987. The easements give the dominant tenement the right to take water from a stream and convey it to its own property, to lay pipes, to enter on the servient tenement for maintenance and repair, to install an electric pump and maintain it and run an electricity supply to the pump and to go onto the property for any repairs.

[3] After Ms Lin took ownership of the 1331 property, she and her farm manager, the second defendant, arranged for a surveyor to define the boundary of the easement and also to define the boundary between the 1343 property and the 1331 property. The farm manager arranged for the area of the easements to be fenced off. It was found that the pipes to take the water to the 1343 property were outside the easement area. He moved them so that they were within the area identified by the surveyors.

[4] Kiwi Trustee Ltd objected to these steps and took special exception…

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: [2017] NZHC 108
Decision Date: 7 February 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Associate Judge R M Bell considered an application by Kiwi Trustee Limited to compel the disclosure of a document that was pertinent to an ongoing dispute over easements and alleged nuisance. The plaintiff, Kiwi Trustee Limited, sought the disclosure of an agreement under which Qing Lin, the first defendant, sold a property at 1331 State Highway 16, Reweti, to Campsites Trustees Ltd. The defendants resisted this application, arguing that the document was not relevant to the case. The legal issues centred on the relevance of the sale agreement to the plaintiff's claims regarding the enforcement and interpretation of easements and the alleged nuisance. Associate Judge Bell examined whether the agreement was relevant under the standard discovery test, which requires disclosure of documents that affect the parties' cases or support another party's case. The Judge concluded that the agreement was not relevant to the plaintiff's claims, as it did not pertain to the actions taken by the defendants between June and August 2013, which were the primary actions complained of. The Judge also noted that the plaintiff's case would remain unchanged regardless of the contents of the agreement, as the plaintiff was not a party to the agreement and could not be bound or affected by its provisions. Therefore, the Judge dismissed the application and ordered the plaintiff to pay the costs of the application to the first defendant.

This case highlights the importance of relevance in determining the discoverability of documents in legal proceedings. The Judge's decision emphasises that the relevance of a document is determined by its connection to the issues in the case, and that documents that do not pertain to the parties' cases or support their arguments are not required to be disclosed. The decision also underscores the principle that a party cannot be bound or affected by the terms of an agreement to which it is not a party. This case serves as a reminder to parties in legal proceedings to focus on the relevance of documents to the issues in the case and to avoid seeking the disclosure of documents that are not pertinent to their claims or defences.

Orders