McCraken v Boyer
[2024] NZHC 3262
•5 November 2024
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 1 extensions”). Clause 9 was recorded in the award as follows:
a.Not to erect on any part of the land any building, structure or fence, nor to alter, add to or extend any existing building on the land without the prior written consent of the Lessor. * Such consent shall not be unreasonably or arbitrarily withheld.
b.If any addition or alteration proposed by the Lessee shall have the effect of altering the external dimensions of the flat, the Lessee shall upon receiving the Lessor’s consent prepare and have deposited in the Land Transfer Office at the Lessee’s own cost a flats plan of the alterations or additions and upon the deposit of the plan, surrender this lease and execute a new lease in substitution therefore. The lessors shall at the Lessee’s cost execute such surrender of lease and the new lease in substitution therefore and the Lessee shall thereupon forthwith register the same. The cost of obtaining any necessary mortgagees’ consents shall be borne by the Lessee.
Addition to clause 9(a)
*“provided that prior written consent shall not be required where the proposed alteration addition or extension does not affect the external dimensions of the flat”.
[9] The issue only came to light when the Boyers purchased Flat 1 in March 2012, which they eventually settled in November that year. Following their discovery that Flat 1’s dimensions were not properly recorded on the flats plan, the then-owner of Flat 2 – Ms Barton-Hills – retrospectively consented to the Flat 1 extensions in October 2012.
[10] A month later, in November 2012, Ms Barton-Hills executed a Deed of Covenant with the owners of Flat 1. The Deed of Covenant provided that the owner of Flat 1 covenanted to the owner of Flat 2 not to undertake any future development on their flat without first obtaining the latter’s written consent. It recorded that the parties did so in order for the Flat 2 owner to be able to “utilise the remaining available square metres of ‘development potential’”.
[11] The Arbitrator considered that this Deed of Covenant was given in part exchange for Ms Barton-Hills’ consent to the Flat 1 extensions, together with a payment of $20,000.
[12] Ms McCracken purchased Flat 2 in March 2013. Her purchase came after these arrangements had been made but before the Deed of Covenant was registered on the title. Her sale and purchase agreement noted that the sale was subject to the Deed of Covenant and that consent had been granted for the extensions to Flat 1.
[13] At the time each party purchased their flats, a fence separated their two properties. The parties (or, at the very least, the Boyers) believed this fence to demarcate the legal boundary between them.
[14] In 2014, surveying revealed this to be incorrect. The surveying found that, in fact, the legal boundary between the parties’ properties was not at this fence but actually “hard up” against the Boyers’ front porch. This meant that a path leading to the main entrance to Flat 1 (“the entrance path”) was, in fact, within the exclusive use area of Flat 2.
[15] On realising this, the Boyers endeavoured to resolve this issue with Ms McCracken directly. Such attempts proved to be unsuccessful and in January 2015,
Ms McCracken demolished the fence.2
[16] Consequently, the Boyers applied to this Court for relief under the Property Law Act 2007. They did so on the basis that the entrance path was a wrongly placed structure under s 321 of the Act.
[17] In a judgment issued in April 2017, Hinton J agreed. The Judge made orders adjusting the legal boundary between the fence up to the line of the former fence and ordered the Boyers to pay $85,000 in compensation to Ms McCracken for the resultant loss of land.3 Three years later, in 2020, the Judge issued orders that a “covenant only plan” be filed to achieve the adjustment of the boundary line that she had ordered.
2 I have taken this part of the factual background from Hinton J’s judgment.
3 Boyer v McCracken, above n 1, at [95].
[18] In the event, little to no progress was made with Ms McCracken in updating the flats plan or cross-lease as required. Further issues ensued.
[19] The Boyers subsequently brought arbitration proceedings so that the flats plan and cross-lease could be updated/substituted.
Arbitral award
[20] The arbitral award made several findings on a range of issues between the parties, including as to whether the arbitration should be stayed for want of jurisdiction. In the context of the present application for leave to appeal however, the relevant issues were essentially as follows:
(a)first, whether Ms Barton-Hills’ retrospective consent to the Flat 1 extensions meant that the parties were obliged under their cross-lease to update the flats plan and cross-lease to reflect the extensions made;
(b)secondly, whether the Boyers had failed in their duty to disclose information to Ms McCracken regarding works that they and their predecessors had undertaken in respect of Flat 1;
(c)thirdly, whether the boundary line between the Flats, as ordered by Hinton J in 2017, was to be drawn at the centre line of the former fence;
(d)fourthly, whether Ms McCracken was entitled to exclusive use of a block wall that she erected along the boundary between the Flats or whether the block wall was a boundary fence; and
(e)fifthly, whether the Boyers had breached obligations under their cross- lease to repair their driveway and, if so, whether they should be ordered to do so and to obtain an expert/engineer’s design for it.
[21]In respect of those issues, the Arbitrator:
(a)held that Ms Barton-Hills’ retrospective consent meant Ms McCracken’s additional consent was not required to update the flats plan to reflect the Flat 1 extensions in accordance with the cross-lease and thus that consent had already been provided for the flats plan and cross-lease to be updated;
(b)held that the Boyers had not failed in their duty to disclose information to Ms McCracken;
(c)held that the proper reading of Hinton J’s 2017 decision was that the boundary line between the Flats was at the centre-line of the former fence;
(d)held that the block wall was a boundary fence; and
(e)declined to order the Boyers to carry out repairs on the driveway or to obtain an expert/engineer’s design for it.
Approach to granting leave
[22] The required approach to the question of leave is not in dispute. Any party to an arbitration agreement may appeal to the High Court on any question of law arising out of an arbitral award by agreement or with leave of the High Court.4 However, where the leave of this Court is required, this Court shall not grant leave unless:5
it considers that, having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of 1 or more of the parties.
[23] A question of law includes an error of law involving an incorrect interpretation of the applicable law but does not include questions as to whether an award was supported by any evidence or whether the arbitral tribunal drew the correct factual inferences from the relevant primary facts.6 That is, a question of law is not a question of fact.
4 Arbitration Act 1997, sch 2, cl 5(1).
5 Schedule 2, cl 5(2).
6 Schedule 2, cl 5(10).
[24] Nevertheless, even if that statutory threshold is met, the High Court still retains a discretion as to whether to grant leave.7 As the Court of Appeal explained in Gold and Resource Developments (NZ) Ltd v Doug Hood Ltd, whether to grant leave turns on as assessment of various factors including:8
(a)the strength of the argument that there has been an error of law;
(b)how the question arose before the arbitral tribunal;
(c)the importance of the dispute to the parties;
(d)the amount of money involved; and
(e)the delay involved in going through the Courts.
[25] Accordingly, two questions arise. The first is the threshold question of whether Ms MsCracken has raised questions of law which – if determined – could substantially affect the parties’ rights. The second is, if so, whether this Court should exercise its discretion to grant leave to appeal, considering the factors set out by the Court of Appeal in Doug Hood.
Are there questions of law that could substantially affect the parties’ rights?
[26] Ms McCracken contends that several questions of law arise out of the arbitral award:
(a)first, in respect of Ms Barton-Hills’ consent to the Flat 1 extensions:
(i)did the Arbitrator err in law in determining that Ms Barton- Hills’ consent was sufficient to validate the existence of the extensions under the cross-lease?
7 Gold and Resource Developments (NZ) Ltd v Doug Hood Ltd [2000] 3 NZLR 318 (CA) at [11].
8 At [54].
(ii)did the Arbitrator err in law in determining that Ms Barton- Hills’ consent remedied or cured the breach of cl 9 of the cross- lease?
(iii)did the Arbitrator err in law in determining that a retrospective consent was possible and capable of remedying an earlier breach by a party who undertook alterations without prior consent?
(iv)did the Arbitrator err in law in determining that Ms Barton- Hills’ consent impliedly included consent to the updating of the Boyers’ cross-lease title to Flat 1 so as to include the Flat 1 extensions?
(v)did the Arbitrator err in law in determining that it was not necessary for the Boyers to obtain Ms McCracken’s consent in relation to validating the existence of the extensions or the future updating of the respondents’ cross-lease title?
(b)and, secondly, in respect of the remaining issues addressed by the award:
(i)did the Arbitrator err in determining that the Boyers had not failed to comply with their duty to disclose information?
(ii)did the Arbitrator err in refusing to require the Boyers to reveal or disclose in full the structures which they or their predecessors had erected, or works that had been carried out, which could affect Ms McCracken’s ability to develop her exclusive use area in the future?
(iii)did the Arbitrator err in refusing to order the Boyers to carry out repairs to and maintenance of the driveway and retaining wall, and by refusing to order the Boyers to obtain and provide an
engineering report for the maintenance of the driveway and retaining wall?
(iv)did the Arbitrator err in her findings on the interpretation and effect of Hinton J’s 2017 judgment and in respect of the Arbitrator’s own authority to modify the 2017 judgment by adjusting the parties’ exclusive use areas?
(v)did the Arbitrator err in refusing to make a declaration that Ms McCracken was entitled to the exclusive control of “a new wall that was built at her expense, on her side of the internal boundary line (as determined in the 2017 judgment) and within her exclusive use area at the time it was built”?
[27] Mr Hollyman KC, for the Boyers, submitted that these questions failed to meet the jurisdictional threshold required. He argued that no distinct questions of law had been raised and that, in any event, the answers to these questions could not substantially affect Ms McCracken’s rights. And he submitted that the array of questions was revealing: that Ms McCracken sought effectively to retry all issues addressed in arbitration, thus undermining the finality that arbitration was meant to achieve.
[28] By contrast, Mr Illingworth KC, for Ms McCracken, submitted that the proposed questions were properly “questions of law” notwithstanding that there were many and that they arose out of the specific factual circumstances of this case. He submitted that the answers to these questions were of great significance to the parties given that these issues involved the extent of their property interests and the use of their respective properties.
[29] I ultimately agree with Mr Illingworth that the jurisdictional threshold is met. While the Court must be vigilant to uncloak questions of fact dressed up as questions of law, the questions that Ms McCracken says arise in respect of Ms Barton-Hills’ consent are effectively questions about the proper interpretation of cl 9 of the cross- lease and what – as a matter of law – is sufficient to remedy a breach of that
requirement. Those are questions of contractual interpretation and the proper application of the law of contract more generally.
[30] The same applies in respect of the questions Ms McCracken says arise out of the other issues addressed by the award. Duties of disclosure and obligations to carry out certain repairs are questions of the proper construction of the cross-lease. And the question about the interpretation and effect of Hinton J’s 2017 judgment is similarly a question about the applicable law – here, the Judge’s decision. Thus, while I agree with Mr Hollyman that the array of questions indicates that Ms McCracken seeks a rehearing on all issues, I consider that to be a factor better assessed under the question of whether to exercise the discretion to grant leave.
[31] Finally, I accept that – for the purposes of this jurisdictional threshold – the determination of these issues could substantially affect the parties’ rights. While I can plausibly see how Ms McCracken’s rights might not be substantially affected in respect of the flats plan (given the updating of the flats plan is sought to merely reflect extensions to Flat 1 that were made before she even acquired Flat 2), the updating of the flats plan does substantially affect the parties in the sense that an updated and accurate flats plan is a practical pre-requisite to any sale of their properties (as the Boyers now wish to do). And while the disagreement over the boundary line between the parties may lie in mere centimetres, I accept that this difference has implications for Ms McCracken’s rights over the wall that she constructed which can – in the scheme of things – be substantial.
[32] Accordingly, I consider that the determination of Ms McCracken’s questions of law could affect the parties’ rights. The question is thus whether this Court’s discretion to grant leave should be exercised in her favour.
Should leave to appeal be granted?
[33] The strength of an applicant’s argument that errors of law were made is – by far – the most important factor in assessing whether leave to appeal should be granted.9 I accordingly start first with an assessment of whether Ms McCracken has a “very
9 Gold and Resource Developments (NZ) Ltd v Doug Hood Ltd, above n 7, at [54].
strongly arguable case” that the Arbitrator erred in the ways she contends, before considering how the other factors apply.
Does Ms McCracken have a very strongly arguable case?
(a) Ms Barton-Hills’ consent
[34] Mr Illingworth’s principal submission was that the Arbitrator erred in her assessment of the effect of Ms Barton-Hills’ consent to the Flat 1 extensions. This was because:
(a)Ms Barton-Hills’ consent was not a “prior, written consent” under cl 9 and there was no ex post facto provision providing for retrospective consent to be given;
(b)the Arbitrator erred in relying on McLaren v Boyd for the proposition that a retrospective consent was possible, and that such a consent was capable of remedying the breach of cl 9(a);10
(c)in any event, Ms Barton-Hills’ consent was not also a consent to the updating of the flats plan under cl 9(b), and the proper construction of cl 9(b) was that a subsequent – and separate – consent needed to be given;
(d)the Arbitrator erred in determining that Ms McCracken was bound by Ms Barton-Hills’ consent, and that no further consent was needed, given Ms McCracken was not party to the arrangements made between Ms Barton-Hills and the Boyers; and
(e)the Arbitrator erred in concluding that it was unnecessary for Ms McCracken’s consent to also be obtained.
[35] Respectfully, I consider these arguments to fall short of the “very seriously arguable” standard required. My reasons follow.
10 McLaren v Boyd HC Auckland CP293-SD/00, 9 October 2000.
[36] First, the issue of whether the flats plan should be updated to reflect the Flat 1 extensions turns on the proper construction of cl 9 and, in particular, cl 9(b). Cl 9(b) imposes an obligation on the lessee to “prepare and have deposited … a flats plan of the alterations or additions” upon “receiving the Lessor’s consent”. That obligation follows from cl 9(a) which provides that a lessee must not “alter, add to or extend any existing building … without the prior written consent of the Lessor”. The most obvious reading of cl 9 is thus that the lessee’s obligation to prepare and deposit a flats plan arises out of the lessor’s consent under cl 9(a). That is, that the lessor’s consent to alterations under cl 9(a) necessarily triggers the obligation on the lessee to “prepare and have deposited … a flats plan”. Or, as the Arbitrator put it, that:
consent to the alteration itself encompasses the lessee updating the flats plan (if necessary) in accordance with [cl] 9(b) and execution of the surrender of the lease and the new lease in substitution.
[37] Moreover, I agree with the Arbitrator that if cl 9(b) required a separate consent, that “one would expect to see” the same proviso that consent not be unreasonably or arbitrarily withheld, given such a proviso applies in respect of consent under cl 9(a) itself. As the Arbitrator rightly said, considerable issues would arise if a lessor consented to alterations under cl 9(a) but then withheld consent to the updating of the flats plan under cl 9(b). And it would be especially strange if a lessor was entitled to arbitrarily withhold consent under cl 9(b) notwithstanding that such a course would not be permitted under cl 9(a) itself.
[38] In the context of leave to appeal, the onus is on Ms McCracken to show a very strongly arguable case that the Arbitrator erred in concluding that cl 9(b) required a separate consent. I fail to see any such argument when the plain reading of cl 9 is clear.
[39] Secondly, I fail to see a very seriously arguable case as to why Ms Barton- Hills’ retrospective consent was insufficient to trigger the parties’ obligations to update the flats plan under cl 9(b).
[40] I accept that the Arbitrator may have put it too strongly when she referred to “the case law” as recognising the validity of a retrospective consent in these
circumstances. As Mr Illingworth emphasised, the Arbitrator referred to only one case: McLaren v Boyd.
[41] However, I do not accept that there is a very strongly arguable case that the Arbitrator erred in relying on that decision, or in holding that a retrospective consent was sufficient to trigger the obligations under cl 9(b) to update the flats plan. In McLaren, the plaintiff sought orders confirming her exclusive use to a carport that she had constructed on the common area of a cross-leased property she part owned. She was one of several owners who had erected such car ports on a common understanding that the one who erected it was entitled to exclusive use. The defendant asserted a right to occupy the carport she had built because he alleged it to have been erected unlawfully. Relevantly for the purposes of the present application, the defendant argued that his right to occupy was founded – at least in part – on a failure by the plaintiff to have obtained consent prior to any construction taking place. Salmon J held:11
It is the plaintiff’s evidence that consent was obtained prior to construction taking place, but whether or not this is so, I am satisfied that the subsequent consent and the course of conduct of all owners in accepting the arrangement whereby particular owners had exclusive use of particular garages or carports binds at least those owners who have been parties to the arrangement or who have become owners with notice.
[42] In my view, and with respect, that must be right. The requirement in cl 9 to obtain prior written consent was not an iron clad rule. Rather, it was what the parties agreed at the time. But in the same way that the parties’ agreed to this requirement, so too did they agree later on to effectively forgive a breach of that requirement– in this case, by paying Ms Barton-Hills $20,000 in consideration for her belated consent to the Flat 1 extensions. It is difficult to see why – as a matter of principle – the parties’ prior agreement (that prior written consent be obtained) should be used to preclude their later agreement (to forgive a breach of that requirement). Parties are free to alter their arrangements if they both agree to do so. Such a conclusion would seem to run counter to a fundamental principle of the law of contract: that it is principally designed to give effect to what parties freely agree to do – for consideration – for each other.
11 At [29].
[43] In that regard, I consider the lack of authorities in this area to point against there being a very strongly arguable case. Indeed, the most obvious explanation to account for the dearth of case law in this area is probably because the point is so trite a proposition that it goes without saying.
[44] Finally, I fail to see a very strongly arguable case for why – in any event – Ms McCracken should be entitled to legally inhibit the updating of the flats plan, regardless of any basis to do so.
[45] The Arbitrator found as a fact that Ms McCracken was clearly advised of the Flat 1 extensions before she purchased Flat 2 and that she was told consent to these extensions had been provided by Ms Barton-Hills. Moreover, the Arbitrator also found that Ms McCracken’s sale and purchase agreement for Flat 2 included express reference to the fact that the Flat 1 extensions had been consented. In light of that factual background, the Arbitrator said:
94.Ms McCracken therefore purchased the property on the understanding that the extension to Flat 1 had been consented to by the previous owner and that she would receive the benefit of that consent having been granted (i.e., the benefit of the Deed of Covenant). There is nothing in the sale and purchase agreement to suggest that she considered that an additional consent from her was required under clause 9(b). There is no contemporaneous evidence to suggest that Ms McCracken understood Ms Barton-Hills’ original consent to be confined to clause 9(a) of the cross-lease. Ms McCracken acknowledged that she was advised at the time she purchased Flat 2 of the consent that Ms Barton-Hills had granted to the extensions to Flat 1. …
[46] Although the point is not obvious from the award, it would seem that the flats plan was always supposed to have been updated while Ms Barton-Hills owned Flat 2 given it was she who was paid $20,000 for belatedly consenting to the Flat 1 extensions. And while I acknowledge that Ms McCracken was not a party to Ms Barton-Hills’ agreement to provide consent, the unassailable facts as the Arbitrator found them would seem to suggest that Ms McCracken is estopped from raising any argument that the flats plan should not accordingly be updated. Indeed, to put it as Salmon J did in McLaren, she became an owner of Flat 1 “with notice” of this very arrangement.
[47] Certainly, it is difficult to see how those incontrovertible facts permit Ms McCracken to argue – let alone very strongly argue – that the flats plan should not be updated.
[48] Consequently, I fail to see any very seriously arguable case that the Arbitrator erred in respect of her interpretation of cl 9, the effect of Ms Barton-Hills’ consent or whether the flats plan should be updated.
(b)Disclosure
[49] Mr Illingworth submitted that the Arbitrator erred in determining that the Boyers had not failed in their duty to disclose information to which Ms McCracken was apparently entitled. As I apprehended the argument, the duty of disclose pertained to the remaining amount of “development potential” that Ms McCracken was entitled to use in accordance with the Deed of Covenant. The point – as I understood it – was that Ms McCracken needed disclosure from the Boyers to ascertain precisely what development potential remained.
[50] I consider this argument to fall short. As Mr Hollyman submitted, the Arbitrator made a factual finding – on the basis of the evidence she heard – that the “surrounds” of Flat 1 remained, “for all material purposes”, the same as at 2023 as they had in 2012. Furthermore, the Arbitrator found that Ms McCracken had offered no evidence to rebut this, that she had only speculated that changes may have occurred, and that the photographic evidence negated this speculation. In light of those unassailable factual findings, it is difficult to see a very strongly arguable case that the Arbitrator erred in concluding that the Boyers failed in any duty of disclosure to Ms McCracken.
(c)Driveway
[51] Mr Illingworth next submitted that the Arbitrator erred in declining to order the Boyers to obtain an expert design for, and to repair the driveway. He submitted that such an order should have been made because the Boyers had an obligation to keep the driveway in good repair and the driveway was in need of such repair. He further
submitted that by declining to make these orders, the Arbitrator had “failed to act even- handedly as between the parties to the arbitration”.
[52] Again, I fail to see a very strongly arguable case for error here. The Arbitrator concluded that the Boyers were obliged to “maintain [the driveway on their property] in good order, condition and repair”. However, the Arbitrator concluded as a consequence that this obligation did not mean Ms McCracken had:
a right under the cross-lease to require the driveway be fixed in a certain (specific) manner provided the obligation to maintain and keep it in good order, condition and repair is complied with.
[53] Ms McCracken offers no basis for why this plainly obvious conclusion is wrong. And in this case, there were further reasons for the Arbitrator to decline to make the orders sought. The first was that the Boyers were (or at least had represented) that they were repairing the driveway – thus rendering any order unnecessary. And the second was that repair of the driveway was bound up with repair of the adjacent timber retaining wall which the Arbitrator found was not an obligation that fell solely on the Boyers as lessees. As the Arbitrator considered herself not to have been in receipt of adequate submissions on the issue of what extent either party should be required to contribute to the repair of the retaining wall, the Arbitrator was plainly justified in declining to make the orders sought. Certainly, there is no “very seriously arguable case” that the Arbitrator erred.
(d)Internal boundary line
[54] Mr Illingworth next submitted that the Arbitrator erred in concluding that the boundary between the parties’ exclusive use areas be drawn at the “centre-line” of the former fence. He submitted this was because the Arbitrator had no authority to vary or modify Hinton J’s decision on the issue in 2017, and that in doing so, the Arbitrator erred.
[55] I consider this argument similarly insufficient. In her 2017 decision, Hinton J made an order:
… adjusting the restrictive covenant boundary so that the path, up to the line of the former fence, becomes part of the restrictive covenant area of the plaintiffs’ property.
[56] The Arbitrator concluded that it was “standard practice” that “the centre line of a boundary fence [be] deemed to be ‘on the boundary’”. In light of that, she considered that:
73.Given that Her Honour was presumably aware that standard practice is to measure the boundary at the centre line of the fence, she would have indicated if her intention was to depart from this practice and choose some other “non-standard” line of fence from which to measure the boundary. She did not do so.
[57] Ms McCracken offers no basis to show why it is very seriously arguable that this was wrong, other than to say that the Judge was silent on the point. I consider that to be insufficient when any reasonable reading of the Judge’s order is that the Judge intended it to be read in light of standard practice in this area.
(e)Block wall
[58] Finally, Mr Illingworth submitted that the Arbitrator erred in declining to make a declaration that the block wall that Ms McCracken erected was within her exclusive use area. He submitted it was wrong for the Arbitrator to have concluded this when Ms McCracken built the wall in reliance on Hinton J’s 2017 decision, and, in particular, the Judge’s orders as to her revised exclusive use area.
[59] Again, I consider the merits of this argument lacking. The Arbitrator found as a fact that Ms McCracken’s intention was to construct a boundary wall and that the Boyers assisted in this endeavour by installing survey markers to ensure that the wall was fairly situated on the new boundary lines. These factual findings are impenetrable on appeal and are all but determinative of the merits of Ms McCracken’s arguments.
Do other considerations point in favour of leave?
[60] As the prior discussion reveals, I consider the strength of Ms McCracken’s challenges to be weak and plainly insufficient to warrant leave to appeal being granted. That – by itself – is fatal to Ms McCracken’s application for leave.
[61] Even so, I consider further factors to weigh against granting leave. The amount of money involved can hardly be said to be substantial and the arbitral proceedings were considerable – involving a three-day hearing before an eminent and highly qualified arbitrator. Indeed, the amount of money involved would not appear to justify the time and expense that would be occasioned by litigating these issues again in this Court. Moreover, Ms McCracken submitted to arbitration and, by implication, to any arbitral award being final, given the cross-lease provided for this, given she fully participated in it, and given she agreed to Dr Kirk sitting as full arbitrator (when a three-member panel was originally contemplated).
[62] But, perhaps even more compellingly, I consider the nature of these proceedings and the length of time in which they have taken place to warrant declining leave. As Mr Hollyman emphasised to me, this dispute has spanned ten years. It has produced at least three decisions of this Court (the present included). In one issued this year, Hinton J said, in respect of the boundary issue:12
Given this case is over a very small strip of land, it is surprising how much airtime has been devoted to it.
[63] I consider that observation to be apposite in respect of all the issues that Ms McCracken raises. Simply put, it is time for these proceedings to be drawn to a close. This is yet another reason – in my view – justifying the refusal of leave.
Result
[64]Leave to appeal is declined.
[65] The Boyers are entitled to costs. If costs cannot be agreed, memoranda of no more than three pages (excluding appendices) may be filed within 10 working days of the date of this judgment. I shall then decide costs on the papers.
Moore J
12 Boyer v McCracken [2024] NZHC 571 at [1].
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