McCraken v Boyer - [2024] NZHC 3262

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-1530

[2024] NZHC 3262

BETWEEN
CLARE JANINE MCCRAKEN

Applicant

AND

ARTHUR JAMES BOYER AND NICOLE RUTH KRAMER

Respondents

Hearing: 5 September 2024

Appearances:

G M Illingworth KC for applicant

R J Hollyman KC and A J Peat for respondents

Judgment:

5 November 2024

JUDGMENT OF MOORE J

[Leave to appeal an arbitral award]

This judgment was delivered by me on 5 November 2024 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ……………………..

Solicitors:
D M A Burgess, Auckland Francis McEntee, Auckland

MCCRAKEN v BOYER [2024] NZHC 3262 [5 November 2024]

Introduction

[1] This proceeding forms part of a long running and seemingly intractable dispute over a cross-leased property in Western Springs.

[2] The applicant, Ms McCracken, and the respondents, Mr Boyer and Dr Kramer (“the Boyers”), are the property’s respective co-proprietors and cross-lessors/lessees.

[3] In March 2022, the Boyers commenced arbitration proceedings against Ms McCracken principally so that the property’s flats plan and the parties’ cross-leases could be updated and then registered on the title of the property. The Boyers sought to do so in order to reflect the new boundary between their properties as ordered by this Court in 2017,1 and to reflect extensions that were made to their dwelling by previous owners in the early 2000s. Ms McCracken resisted this course and counterclaimed in relation to issues concerning a new block wall and the repair of their driveway.

[4] The arbitration proceedings culminated in a three-day arbitration hearing before Dr Anna Kirk in November 2023. In March 2024, Dr Kirk issued an award that found overwhelmingly in the Boyers’ favour.

[5] Ms McCracken now seeks leave to appeal that arbitral award to this Court, contending that the Arbitrator made several errors of law. The Boyers oppose.

Background

[6] The property at the heart of this dispute comprises two flats; one at the rear of the property owned by the Boyers (known as Flat 1) and one at the front of the property owned by Ms McCracken (known as Flat 2). The Boyers’ driveway runs down to their property past Flat 2.

[7] The nature of the cross-lease is that the parties are equal owners in the fee simple estate of the property, but that they each lease a flat on that property for which they have exclusive use. It is this leasehold interest over an exclusive use area which

1 Boyer v McCracken [2017] NZHC 755, (2017) 18 NZCPR 671.

is what the parties actually “own” in the conventional sense, and which, for the sake of convenience, I refer to as “their property”.

[8] In the early 2000s, the Boyers’ predecessors in title carried out extensions to the lounge, living room and deck of Flat 1. Contrary to cl 9 of the cross-lease, the previous owners never obtained prior written consent from the then-owners of Flat 2 for these extensions (“the Flat…

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 McCraken v Boyer

Details

AGLC: McCraken v Boyer [2024] NZHC 3262
Case: [2024] NZHC 3262
Decision Date: 5 November 2024

CaseChat Overview and Summary

Clare Janine McCracken sought leave to appeal an arbitral award against Arthur James Boyer and Nicole Ruth Kramer in the High Court of New Zealand, Auckland Registry. The appeal stemmed from a long-standing dispute over a cross-leased property in Western Springs, Auckland, involving issues such as the updating of the property’s flats plan and the enforcement of cross-lease terms. The Boyers had initiated arbitration proceedings to update the flats plan to reflect extensions made to their property in the early 2000s and to adjust the boundary between the properties as ordered by the Court in 2017. The arbitration concluded in March 2024 with an award largely in favour of the Boyers. Ms McCracken contended that the Arbitrator made several errors of law and sought leave to appeal this award.

The key legal issues were whether Ms McCracken had raised questions of law that could substantially affect the parties' rights and, if so, whether the Court should exercise its discretion to grant leave to appeal. Ms McCracken argued that the Arbitrator erred in interpreting the cross-lease, particularly in relation to retrospective consent to extensions and the obligations to update the flats plan and cross-lease. She also contended that the Arbitrator erred in not ordering the Boyers to disclose certain information and to repair the driveway. The Boyers opposed the application, arguing that Ms McCracken sought to rehear all issues decided in arbitration and that her claims lacked merit.

The Court found that the questions raised by Ms McCracken were indeed questions of law concerning the interpretation of the cross-lease and the applicable law. However, the Court considered the strength of Ms McCracken’s arguments to be weak and insufficient to warrant leave to appeal. The Court noted that the arguments concerning retrospective consent and the updating of the flats plan were not seriously arguable given the clear terms of the cross-lease and the factual findings of the Arbitrator. Similarly, the arguments regarding disclosure, the driveway, and the internal boundary line lacked merit. The Court also considered other factors such as the length of the proceedings, the amount of money involved, and the principle of finality in arbitration, concluding that leave should not be granted. Consequently, leave to appeal was declined, and the Boyers were awarded costs.

Orders