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Macrae v Walshe

Macrae v Walshe

Case [2013] NZCA 664 19 December 2013

Easements & Covenants

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA814/2012
[2013] NZCA 664

BETWEEN	ROSS DONALD MACRAE AND LYNETTE GWENETH JOY MACRAE Appellants
AND	ANTHONY PATRICK WALSHE First Respondent
AND	LESLEY ANN BERTRAM SMITH Second Respondent
AND	DOUGLAS SEYMOUR ALDERSLADE, RAYMOND JOHN BEECH AND CHRISTINE BEECH Third Respondents
AND	RICHARD HAMMOND AITKEN, ANGELA RUTH AITKEN, BRIAN HAMMOND AITKEN AND ROBERT JAMES AITKEN Fourth Respondents
AND	AUCKLAND COUNCIL Fifth Respondent

Hearing:	19-20 November 2013
Court:	O'Regan P, Stevens and French JJ
Counsel:	N R Campbell QC for Appellants G C Jenkin for First Respondent No appearance for Second to Fifth Respondents
Judgment:	19 December 2013 at 11.45 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe cross-appeal is allowed.
CThe easement granting the rights of way in Transfer No D365912.14 dated 18 February 1999 is to be modified pursuant to s 317(1) of the Property Law Act 2007 in such a manner as to reflect the conclusions in the judgment at [28]–[29], [38] and [50] on the basis that the easement granting rights of way will apply in favour of the following two properties as the dominant land:
(a)the land contained in Lot 1 DP 387905 (Identifier No. 351983 North Auckland Registry) (Lot 1); and
(b)the land contained in Lot 2 DP 387905 (Identifier No. 351984 North Auckland Registry) (Lot 2).

DThe parties are to confer and appoint a conveyancing practitioner to document and implement the modifications to the easement as ordered at C above in order to provide that the easement granting rights of way will apply with full effect to both Lot 1 and Lot 2.
EWe reserve leave to apply for further directions in the event that there are any practical difficulties documenting or implementing the conveyancing to reflect the relief granted in this Court.
FThe order in the High Court pursuant to s 317(2) of the Property Law Act requiring the appellants to pay compensation comprising in total the sum of $289,365.75 is quashed.
GIn its place there is an order that the appellants are required to pay the first respondent the following as reasonable compensation:
(a)the sum of $100,000 prior to registration of the documents modifying the easements in favour of the two properties as the dominant land;
(b)the full costs of sealing the existing road by which the rights of way are enjoyed on the following basis:
(i)     there is no change in scale, direction or location of the road; and
(ii)     the type of seal used is to be a light chip seal to ensure that it is sealed to a standard that is safe and durable. The actual seal used may be agreed between the parties and in the absence of agreement is to be decided by a civil engineer in practice on Waiheke Island; and
(iii)    for the ongoing maintenance costs incurred towards the upkeep of the right of way a reasonable contribution assessed on the basis of appropriate use as provided for in the easements.
(c)the reasonable legal costs of the…

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 Macrae v Walshe

Details

AGLC: Macrae v Walshe [2013] NZCA 664
Case: [2013] NZCA 664
Decision Date: 19 December 2013 at 11.45 am

CaseChat Overview and Summary

In this case, the Court of Appeal of New Zealand allowed an appeal and a cross-appeal in a dispute concerning the scope of a right of way over land owned by Anthony Walshe. The MacRaes, who own neighbouring properties, sought to modify the right of way over Walshe's land. The Court of Appeal found that the easement in question allowed access to only one dwelling on the dominant land and for naturally related or ancillary purposes. The Court concluded that the easement should be modified to reflect this and to apply in favour of two properties owned by the MacRaes. The Court also found that the compensation awarded by the High Court was excessive and ordered a reduced amount of $100,000. The Court quashed the High Court's order that the MacRaes pay Walshe's costs on a 2B basis uplifted by 50 per cent and instead ordered that the MacRaes pay Walshe's costs in the High Court on a 2B basis and reasonable disbursements to be determined by the Registrar of the High Court. The Court made no order as to costs in respect of the appeal, as each party had a measure of success.

Orders