Mikitasov v Collins

[2008] NZCA 390

IN THE COURT OF APPEAL OF NEW ZEALAND

CA211/2008
[2008] NZCA 390

BETWEENIGOR ALEXANDROVICH MIKITASOV
Appellant

ANDBERNARD JOHN COLLINS
Respondent

Hearing:19 August 2008

Court:Glazebrook, Fogarty and MacKenzie JJ

Counsel:D R James for Appellant
A H Waalkens QC and R C Mark for Respondent

Judgment:25 September 2008 at 3.30 pm

JUDGMENT OF THE COURT

A        Application for leave to adduce further evidence refused.

B        Appeal dismissed.

CThe appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Fogarty J)

Introduction

[1]       This is an appeal against a decision of Associate Judge Robinson in which he resolved an easement dispute between two neighbours.  Mr Collins owns the property at 26 Binnie Street, Kerikeri.  Mr Mikitasov owns 28 and 30 Binnie Street.  He also owns a property referred to in these proceedings as Lot 2 which is at the rear of 28 Binnie Street.  There is a right of way over Mr Collins’ property in favour of Lot 2.  That right of way is essentially a private street running up from near the front of 28 Binnie Street providing access to a number of different lots including Mr Collins’ property at 26 Binnie Street and Lot 2.  Mr Mikitasov has been integrating Lot 2 into the use of his house on 28 Binnie Street.  There is also a separate footpath easement between Lot 22 and 28 Binnie Street.

[2]       Mr Collins commenced proceedings in the High Court contending that Mr Mikitasov was using the easement granting vehicular access to Lot 2 to access 28 Binnie Street.  In the judgment under appeal Associate Judge Robinson declared that the easement did not create a right to 28 Binnie Street and that the appellant, his contractors and employers were not entitled to use the right of way to access 28 or 30 Binnie Street.  Moreover, he granted an injunction restraining the appellant from so using the right of way.  He dismissed the appellant’s counterclaim which sought:  first, a declaration that he and his invitees were entitled to use the right of way for reasonable access to 28 and 30 Binnie Street; and second, a declaration that he was entitled to use the right of way for the purpose of pedestrian access to Lot 2 and then to move from Lot 2 to 28 or 30 Binnie Street. 

[3]       The appellant purchased 28 Binnie Street and Lot 2 from Mr Collins.  At the time 28 Binnie Street had a house erected on it and a formed driveway from Binnie Street to the front of the house.  The properties are on a hillside and there is no realistic way of getting vehicle access to Lot 2 at the rear of 28 Binnie Street, except by way of the right of way.  Mr Mikitasov said he was persuaded to buy Lot 2 on assurances from Mr Collins that he could integrate Lot 2’s use with the use of 28 Binnie Street.

[4]       Last, but not least, Associate Judge Robinson allowed to lapse a caveat that Mr Mikitasov had lodged over the property of Mr Collins claiming entitlement for an easement over the right of way in favour of 28 Binnie Street. 

Issues on appeal

[5]       Mr James proposed the following list of issues:

As to the new evidence:

(a)Should this Court consider the existence and apparent value of the registered footpath easement between the properties (Lot 2 and 28 Binnie Street)?

As to the appeal grounds:

(b)Is the respondent’s action an appropriate case for declaratory judgment by way of summary judgment?

(c)Does the appellant have an arguable claim for an equitable, implied or quasi-easement?

(d)Should the appellant’s entire counterclaim be struck out and his application to amend his counterclaim not entertained?

(e)Can the counterclaim be afforded protection by a caveat?

(f)Was the grant of an injunction against the appellant appropriate?

(g)In the terms granted?

[6]       Broadly, we would agree with this ordering of the issues with some condensing.  We see the issues as:

(a)A preliminary issue as to the relevance of the registered footpath easement, coupled with the application for leave to adduce more evidence. 

(b)Whether the appellant can sustain retention of the caveat.

(c)If not, whether, for other reasons, the respondent’s statement of claim and appellant’s statement of defence and counterclaim should be reinstated and left to go to trial.

(d)If not, whether the declarations and injunction made should be left as granted or amended, and in particular, consider declaration 1(b) which provides:

That Mr Mikitasov, his contractors and/or employers are not entitled to use the right of way created by instrument easement 6088561.14 to access 28 and/or 30 Binnie Street. 

[7]       It may be noted that the above list of issues leaves out the appellant’s proposed issue (b).  We do not think it is appropriate to resolve a question of summary judgment on any action by simply placing it in a class of case in respect of which it might be said summary judgments cannot succeed.  There are certainly classes of case in which summary judgment is unlikely to succeed.  But the remedy of summary judgment under r 135 of the High Court Rules provides for the application of summary judgment procedure to every proceeding other than some limited exceptions, which do not apply. 

The relevance of a registered footpath easement

[8]       There is a registered footpath easement being a pedestrian right of way enabling persons from the dominant tenement, 28 Binnie Street, to cross Lot 2 to obtain access to a scenic reserve.  For different reasons both parties consider this easement to be irrelevant.  The appellant says it is irrelevant because the persons trying to use the footpath would have to jump over a two metre retaining wall built by the respondent.  He is referring to construction by the respondent prior to sale.  The respondent says that a footpath could be formed albeit at some cost but the presence and capability of the easement does not determine or assist the issues on appeal.  The appellant sought to adduce further evidence of proceedings in the District Court at Kaikohe at which the appellant and other persons have commenced proceedings to confirm the existence of the right of way and to modify it so as to make it more effective.  These are opposed by the respondent in these proceedings, not because of a dispute as to the easement but as there is no need to modify it.

[9]       The success or failure of the appellant’s proceedings in the High Court seeking to pursue his caveat and his counterclaim do not depend, and cannot depend, on the worth or efficacy of this separate easement.  It is noteworthy that it did not figure at all in the oral argument before this Court distinct from the application to admit evidence, nor is it a feature of the written briefs.  On its face the caveat does not plead the footpath easement in any way, nor does the statement of defence and counterclaim, nor does the proposed amended statement of defence and counterclaim.  The footpath easement is irrelevant.  The application to adduce further evidence must accordingly be dismissed.

Whether the caveat should have been allowed to lapse

[10]     The caveat lodged by the appellant X7627994.1 pleaded the following estate or interest:

The nature of the interest claimed is for an easement in the nature of a right of way over CT 113828 (Lots 3 and 4) [“the subject land”] as servient tenement of which the said BERNARD JOHN COLLINS  is the “registered proprietor” in favour of the caveator’s land in CT 113826 as dominant tenement;  by virtue of a verbal agreement made on or about 24 November 2004 when the registered proprietor of the subject land represented that if the caveator purchased CT 113826 (Lot 1, 28 Binnie Street) that it could be enjoyed together with CT 113827 (Lot 2) which has the benefit of the right of way interests described in easement instrument 6088561.14 registered against the subject land.

The agreement is supported by memoranda in writing being the simultaneous sale and purchase agreements executed on 29 November 2004 in which the caveator purchased from the said registered proprietor and the company he controlled, Pacific Properties Ltd, the two properties being respectively the above referred CT 113826 and CT 113827. [words in round brackets added]

[11]     That claim is seeking for 28 Binnie Street the status of dominant tenement as enjoyed by Lot 2.  It may be noted that the caveat does not refer to the other servient tenement being Lot 2 on DP 76052 owned by a Mr Snoswell.

[12]     The caveat asserts a verbal agreement constituted by the purchase of Lots 1 and 2 against the representation of Mr Collins that Lot 1, 28 Binnie Street, could be enjoyed with Lot 2. 

[13]     It is not suggested at any time in the pleadings or in the affidavits that Mr Collins’ representations specifically addressed the existence, let alone benefit of, the right of way.  

[14]     In the counterclaim the appellant pleads:

12.During the course of the negotiations the defendant explained to the plaintiff that he wished to purchase the properties together for use by his family and for other reasons including development.  It was expected and represented that the properties would complement each other in their enjoyment and uses.

13.The said lot 2 and the lower one half portion of 30 Binnie Street which is contiguous with lot 2 also have family and development affinities for the purposes of the defendant and his family.

14.The plaintiff was aware of the defendants interest in assembling 28 Binnie Street together with lot 2;  and of the defendant’s further purchase of 30 Binnie Street with an existing residence, and having a capacity to further develop the portion of 30 Binnie Street contiguous with lot 2.

[15]     The appellant in his first affidavit in these proceedings in opposition to summary judgment says:

5.In the unusual circumstances of this case, and referring to the proposed amended counterclaim, my lawyer has suggested, and I have pleaded that a use of the right of way should be made available for 28 Binnie Street as I and my family will be using 28 Binnie Street and Lot 2 in an integrated way.  I have said, and will detail further below, that the Plaintiff encouraged the Defendant to consider that Lot 2 and 28 Binnie Street could be used as one large estate.  It will be noted from Exhibit “A”, further described below, (the Sale and Purchase Agreement dated 24 November 2004 from Plaintiff to Defendant for 28 Binnie Street), that the Plaintiff warranted to complete the heated swimming pool at 28 Binnie Street.  I anticipate that the Plaintiff would have accessed 28 Binnie Street through Lot 2 for some of the construction purposes in respect of that swimming pool.  While I appreciate that the Plaintiff is the owner of the right of way and can make reasonable use of it as he pleases; it may be useful background to know the extent to which the Plaintiff was aware that a legalistic approach to my or my visitors use of the right of way as respects 28 Binnie Street, is not reasonable.

8.During the course of negotiating that agreement the Plaintiff learned from me that I was planning to bring family to New Zealand including my two parents from Moscow, my wife’s two parents from Moscow and my wife’s grandparents also from Moscow.  Most of these movements will be progressed after my third anniversary of permanent residency in New Zealand, when, as I understand it, I will be in a position to sponsor, together with my wife, these emigrations by family members.  Upon learning of this Mr Collins mentioned that he also had available for sale Lot 2 which was an undeveloped Lot owned by the proposed Second Defendant by Counterclaim, Pacific View Properties Limited.  In that discussion he described and approved the proposition that Lot 2 and 28 Binnie Street could be used, in his words, as one big estate.

9.After considering the proposition and looking at Lot 2 I also entered into an agreement dated 24 November 2004 (attached as Exhibit “B”) where I bought Lot 2 [which is also described as “28 Binnie Street”] for $740,000.00 from Mr Collins’ company, Pacific View Properties Limited.  Again, I was paying by way of US$.  Clause 14 provides that the vendor was paying the Real Estate commission.  I left New Zealand to return to Russia on 25 November 2004.

10.A company search of Pacific View Properties Limited shows that the Plaintiff is its sole director.

11.As a result of these discussions, I anticipated co-operation with Mr Collins in my integrated use of Lot 2 to 28 Binnie Street to the extent that related family members would be living on these properties and there was bound to be daily intercourse between the properties.

12.I did not have my own lawyer in New Zealand at time of purchase and the only lawyer involved until the time of conveyancing, which was about 6 months after the agreement (in June 2005) was Mr Collins and his company lawyer which apparently was Law North Partners of Kerikeri, Mr Dennis McBrearty.  At the time of proposed registration of transfer I appointed Paul Gorringe a solicitor of Paihia.  I was never alerted to the value of insisting that the existing Easement Certificate which provided dominant use of the right of way to Lot 2 only, needed to be varied.  I believed that the sale documents would recognise what was acknowledged at the time of entering into the Agreements, and that is that Lot 2 and 28 Binnie Street would have integrated uses for an extended family.  I relied on Mr Collins’ statement the Lot 2 and 28 Binnie St could be used together as one estate.

[16]     The appellant caused to be filed in the High Court an affidavit by Ms Madden, a real estate agent who was with the appellant when he had this discussion with Mr Collins.  She said:  

7.I showed Mr & Mrs Mikitasov 28 Binnie Street together with a number of other properties.  At 28 Binnie Street, Mr Collins was also present and I believe he had his personal assistant with him.  At that first attendance Mr Collins also mentioned that Lot 2, which was below 28 Binnie Street and owned by Pacific View Properties Ltd which he managed, was also for sale.  Mr & Mrs Mikitasov and myself together with Mr Collins went down to have a look at Lot 2 at that time.

8.Shortly after that initial viewing of the 2 properties, Mr & Mrs Mikitasov left New Zealand.  Mr Mikitasov was back in the country on 23 November.  At his request I arranged that we again have a look at 28 Binnie Street.  Mr Collins was also present and again Lot 2 was discussed.  It was clear in these discussions, both at the first viewing with Mr Collins and at the viewing on 23 November 2004, that Mr Mikitasov’s interest in Lot 2 was for his own uses in connection with 28 Binnie Street, because a possible tennis court was discussed;  and also his grandfather who he hoped to arrange to come to New Zealand and to live near him.  Mr Collins encouraged consideration of the complementary uses of these properties.

9.A further meeting was arranged for 24 November 2004.  In advance of that meeting I met with Mr Mikitasov where we commenced filling in the sales and purchase agreements for both properties.  I understand that photocopies of these agreements will be attached to the affidavit of Mr Mikitasov and I have observed them again recently when providing the information for this affidavit to Mr Mikitasov’s lawyer.  During the course of filling in these sale and purchase agreements I had telephone contact with Mr Collins to discuss the special conditions.

10.On 24 November 2004 sometime near midday I met with Mr Mikitasov and Mr Collins and his personal assistant at 28 Binnie Street.  There were discussions of about 2 hours including mostly the terms of payment and the numerous chattels which would go with the sale of 28 Binnie Street.  In respect to both 28 Binnie Street and Lot 2, Mr Mikitasov was offering to purchase at the asking prices of, $2,000,000.00 for the one property, and $740,000.00 for the other. 

11.In my observation of the three meetings which ended with the mutual execution of the two sale and purchase agreements, it had  been clearly expressed by Mr Mikitasov that if he bought both the properties he would be integrating some of their uses;  and Mr Collins was present throughout these expressions of intention by Mr Mikitasov and he encouraged Mr Mikitasov in his plans.  If, as I understand it, Mr Collins seeks to prevent Mr Mikitasov and his visitors from using the right of way for anything in connection to 28 Binnie Street, it affects me in light of the negotiations I witnessed, as a surprising development.

12.After the signing of the two agreements Mr Collins and Mr Mikitasov were very affable with each other.  I observed Mr Collins to invite Mr Mikitasov for dinner which was accepted.  I also observed Mr Collins to recommend to Mr Mikitasov his own architect, Mr Hutching.

13.During the course of these discussions no mention was made of the limited rights of the owner of Lot 2 to utilise the right of way only for access to Lot 2.  Mr Mikitasov did not engage a lawyer at the time of the execution of the purchase agreements on 24 November 2004. 

[17]     Mr James submitted that at a trial further evidence might come out. No weight should be accorded to such a submission.  The appellant and Ms Madden are the only two possible witnesses for the appellant.  Plainly, the affidavits filed have given the best recollection of the appellant and Ms Madden as to what was said at the time.  The Associate Judge was correct to proceed on the basis that the case for the appellant as defendant to the application for summary judgment and as caveator depended on an inference that Lot 1, 28 Binnie Street, would have the benefit of the right of way because Mr Collins encouraged the appellant to believe that both properties could be used as an integrated property.  Associate Judge Robinson put it this way:

[14]     For the purpose of this decision, I will assume that Mr Mikitasov’s version of the discussions between himself and Mr Collins at the time of the purchase of these properties is correct.  In particular I will proceed on the basis that Mr Collins encouraged Mr Mikitasov to believe that he could use both Lot 2 and 28 Binnie Street as an integrated property, that the purchase of Lot 2 would enable him to build a swimming pool, tennis court or dwelling and that there would be free movement between Lot 2 and 28 Binnie Street. 

[18]     That paragraph presents the evidence as favourably as it can be put for the appellant and is a fair summary of the evidence from the affidavits set out above.

[19]     It is common ground between counsel, and correctly stated by Associate Judge Robinson that on its face the terms of the right of way do not inure for the benefit of 28 Binnie Street.  That was admitted by the appellant in the pleadings.  The question always at large between the parties was whether the appellant was able to enforce against Mr Collins, as the registered proprietor of the servient tenement (Lots 3 and 4) a decree requiring him to submit to an extension of the terms of the right of way to include Lot 1, 28 Binnie Street, as a dominant tenement along with Lot 2. 

[20]     We note here that the problem of there being no action against Mr Snoswell, the owner of the other servient tenement, is being treated favourably to the appellant, as capable of being avoided by altering the entrance of the right of way from Binnie Street so that it enters onto Lot 3 and does not in fact cross Mr Snoswell’s property. 

[21]     Mr James submitted that Associate Judge Robinson had erred by finding that before such an equitable easement could be recognised and enforced there had to be a specific agreement by Mr Collins to the effect that the right of way in favour of Lot 2 would benefit Lot 1, 28 Binnie Street if the appellant purchased both properties.  In this context he was arguing that the Judge was saying there had to be an express representation to that effect.  We do not read the Judge as saying that at all.  Rather, he was correctly identifying that Mr Collins was in effect simply stating what was obvious:  that the two properties could be used as one large estate so that there would be free movement from one lot to the other.  Had he said anything more than that then there might be room to infer a representation that the right of way could be used for the benefit of Lot 1, 28 Binnie Street.  For example, had he said the property could be developed to provide that the main access to both lots be at Lot 2 that would carry the inference that the necessary vehicle access to the site for both lots could be taken from Lot 2. 

[22]     It also needs to be kept in mind that when the appellant purchased these two lots there was already a house built on Lot 1, 28 Binnie Street, including a driveway to the house from Binnie Street.  There was no context whereby vehicular access to Lot 1 was an amenity to be constructed.

[23]     Mr James submitted that an equitable easement might arise because of the conduct of the parties.  In principle that can be so.  But the ultimate test of an equitable easement is whether or not equity will direct the owner of the servient tenement to execute a registerable memorandum of transfer converting the equitable easement into a legal estate.   Such memorandum has to be specific.  That indeed is why the caveat is specific.  The conduct of the parties subject to such a direction has to be such to justify the specific terms required to create the legal interest.  So it follows that if the representation or conduct has not been express and the argument depends on inference, the inference must be compelling.  Here, Associate Judge Robinson was correct to find that the respondent’s conversation and conduct did not necessarily include a representation that the right of way in favour of Lot 2 could also be used by those going to 28 Binnie Street.  For these reasons we think the following passage from the judgment on appeal is correct:

[18]     The basis for Mr Mikitasov’s claim to an easement over part of 26 Binnie Street in favour of 28 Binnie Street is a claim that he was led to believe he could use Lot 2 and 28 Binnie Street as one large estate.  In one way that is correct.  However, such a representation does not necessarily include a representation that a right of way in favour of Lot 2 could also be used by those going to 28 Binnie Street.  Mr Mikitasov’s evidence does not go so far as to claim a specific representation by Mr Collins to the effect that the right of way in favour of Lot 2 would benefit 28 Binnie Street if Mr Mikitasov purchased both properties.  In representing to Mr Mikitasov that Mr Collins could use both properties as one estate, Mr Collins was in effect stating the obvious.  There need not be a fence between the two properties and there would be free movement from one property to the other.

[24]     In the Court below and before us, Mr James mounted an argument which he called the principle in Wheeldon v Burrows (1879) 12 ChD31. He did not present it as an alternative argument explicitly, but it is in fact one. Essentially Mr James was arguing that there is a principle of equity whereby tenements not expressly granted as easements will nonetheless obtain practical easement of benefits (which can inferentially be converted to legal easements) where it is natural for those tenements to obtain the benefit of a right of way for the reasonable enjoyment of that tenement.

[25]     In Wheeldon a workshop and an adjacent piece of land belonging to the same owner were put up for sale.  The workshop was not sold but the piece of land was.  The workshop had windows overlooking and receiving their light from the adjoining piece of land first sold.  A month later the workshop was sold to another person.  Subsequently the purchaser of the piece of land intended to build on the land in a way which would obstruct light passing to the windows of the workshop.  The Court held that when the vendor had sold the piece of land, but not the workshop, that he had not reserved the right of access of light to the windows.  No such light was reserved and so passed to the purchaser of the workshop.  Consequently the purchaser of the workshop was not able to stop the purchaser of the piece of land from building so as to obstruct light to the windows. 

[26]     In the judgment under appeal Associate Judge Robinson cited Bacon VC at 44 of Wheeldon, who addressed the issue in terms of an implied grant.  He said:

All the cases in which a reservation has been implied are cases in which the necessity of the case required such an implication.  Why?  Because the thing sold and conveyed could not be enjoyed by the grantee in the manner and to the extent which it was plainly by the parties intended that it should be, unless such implication were made.  Thus, a right of way was held to exist because the enjoyment according to the contract could not be had without it; …

[27]     Since then, the concept of necessity has been examined by later authorities.  It does seem apparent to us that the courts adopt that liberal meaning of necessary as being necessary to the reasonable enjoyment of a property rather than a necessity.  In Willcox v Richardson (1997) 43 NSWLR 4 Meagher JA was examining the extent of the benefits granted in a formal sublease of a takeaway fish and chip shop being part of land also used as a wet fish shop. The issue was the extent of the sub-demised premises. One question was whether or not the sub-lessees of the takeaway obtained a space to fillet fish, a filleting bay. There was evidence available as to which part of the whole of the lot was to be exclusively in the possession of the sub-lessees. There was an issue as to whether they would have a quasi-easement over the northern premises being a wet fish shop rather than the leased takeaway shop. The Judge reasoned (at 8B – E):

It is at this point that his Honour’s judgment seems, with respect, deficient.  His Honour seems to have held that because:  (a) there was no exclusive use of lot 276 outside the area found by him; and (b) it was not absolutely essential to the operations of the southern shop that any other area be used, the rights of the sub-lessees did not extend beyond that 4,060 square feet area.  This, in my view, cannot be sustained;  the appellants have proved that they had rights of a Wheeldon v Burrows (1879) 12 Ch D 31 kind over additional areas, that is, a quasi-easement of a “continuous and apparent” nature which was “reasonably necessary for the enjoyment of the property granted” by the sub-lease. These “additional areas” are the areas which it was proved were used in common with the proprietors of the northern shop. Mr Biscoe QC learned senior counsel for the respondents, resisted this proposition because of his Honour’s finding that these areas were not essential for the conduct of the southern shop. In my view this is to apply too stringent a test. The additional areas were “reasonably necessary” within the rule. To take an example: if you are going to fillet fish, it is “reasonably necessary” to have a filleting bay; and this “reasonable necessity” does not disappear because it would be possible to fillet the fish in one’s kitchen at home.”

[28]     It can be seen from that reasoning that Meagher JA has used the standard of reasonably necessary in a practical way reflecting reasonable use to be expected in order to make reasonable use of the dominant tenement.  That is why we have used a synonym of a natural use, which Mr James accepted captured the distinction that Meagher JA was seeking to make. 

[29]     Applying that notion of natural use or reasonable and necessary use, it does not follow that Lots 1 and 2 cannot be used as one integrated estate unless the right of way to Lot 2 is also for the benefit of Lot 1.  As we have had occasion to mention, Lot 1 already has a formed vehicular access.  Second, the property could be used as one integrated estate with one or more dwellings, while the right of way to Lot 2 is confined to bringing vehicles and persons to the rear portion comprising Lot 2, who have a particular reason for needing direct access to that part of the estate.  For example, as may occur, should the appellant build a residence for other members of his family on Lot 2, they will have a reason to drive a car onto Lot 2 using the right of way. 

[30]     Mr Waalkens QC is right that none of this prevents persons on Lot 2 and Lot 1 from mixing by passing from one property to the other.  However, when a person’s principal activity is occupancy of the house on Lot 1, 28 Binnie Street, that does not justify that person using the driveway to Lot 2 on the grounds that the occupants of Lot 2 have no objection to him using that lot as a means of access to Lot 1.  To take another example:  if the balance of Lot 2 is used for recreational appurtenances to the residences such as a swimming pool or tennis court, that does not justify occupants of Lot 1 using vehicles to drive on to Lot 2 as a matter of daily use of the whole property, as occupants of the house would not normally come back to a residence just to use the swimming pool and the tennis court.  In short, there is no need for the right of way on Lot 2 to be amended to include Lot 1 as a dominant tenement in order for Lots 1 and 2 to be used together as one or more family residences. 

[31]     It is appropriate in this context to address the submissions we heard on ancillary use.  We have already given an instance of this.  Where a person has used a right of way to get to a dominant tenement it does not follow that as near ancillary use of the dominant tenement that person moves to adjacent land not part of the dominant tenement that the person is in breach of the right of way.  Breach of a right of way occurs when the right of way itself is used for a reason other than the purpose for which it is created.  The right of way to Lot 2 is created to enable access by vehicle and on foot to Lot 2 for persons whose principal purpose is to go to Lot 2.  If their principal purpose is to go to Lot 1, where the house currently is, they should not be using Lot 2.  However, if their principal purpose is to go to Lot 2, for example, as guests to have a game of tennis on the tennis court, that does not mean that they cannot go for a drink or afternoon tea across the boundary into Lot 1.  Sometimes the ancillary use may be quite obvious or even expressed, but sometimes it is simply implied.  What the law does insist on, and in that regard is correctly stated by Associate Judge Robinson, is that the use of the right of way is for the enjoyment of the dominant tenement not for the enjoyment of other land.  He correctly cited a passage from the authors of Hinde McMorland and Sim Land Law in New Zealand Vol 2 at [16.021]:

… Thus in Smith v Smith [(1895) 14 NZLR 4 at 6] Richmond J referred to the general doctrine “that a private right of way into one close must not be used with the real intention of passing on thence to another adjacent close in respect of which the way was not granted”. …

[Emphasis added]

We have not cited the whole of the paragraph but we do not understand the authors to suggest that having used the right of way with that real intention there could not be incidental passage from the dominant tenement to another tenement without the benefit of the right of way and indeed Mr Waalkens was at pains to reiterate in the course of argument that he was not arguing otherwise. 

Whether for other reasons the respondent’s statement of claim and statement of defence and counterclaim should be reinstated and left to go to trial

[32]     The counterclaim was first filed on 17 July but there is a proposed amended statement of defence and counterclaim which we also rely upon as disclosing the arguments which Mr Mikitasov wishes to pursue.  Essentially, he is arguing that Mr Collins is estopped from alleging that the easement certificate in question prevents the use of the right of way to Lot 2 for complementary uses at 28 Binnie Street.  We have dealt with this argument when considering whether or not the caveat should have been allowed to lapse.  The second cause of action relates to the construction by Mr Collins of a gate.  Originally, when first constructed it had to be opened remotely and Mr Mikitasov had only one door opening device.  Now it can be opened manually by visitors but it is contended that there is inadequate advice to visitors as to how open and close the gate and it closes within 40 seconds.  Mr Jones did not pursue argument on this cause of action.  Nor did the Associate Judge address it in his judgment.  It is hardly an appropriate subject of High Court proceedings.  However, we consider it should be identified as a cause of action which has not merged in the judgment.

Amendment of declaration 1(b)

[33]     As already set out, this declaration provides:

That Mr Mikitasov, his contractors and/or employers are not entitled to use the right of way created by instrument easement 6088561.14 to access 28 and/or 30 Binnie Street. 

[34]     As we have explained, if persons have used the right of way for the principal purpose of going to Lot 2, it does not mean that they cannot move across the boundary into Lot 1, 28 Binnie Street.  However, in its context 1(b) is to be understood as referring to the principal purpose for using the driveway to Lot 2.  It is not justiciable to write some kind of code which allows for incidental foot passage of persons on Lot 2 to 28 Binnie Street.  We see no reason to amend declaration 1(b), but it must be read in the light of this judgment.

Conclusion

[35]     We conclude:

(a)     The application for leave to adduce further evidence is refused.

(b)The appeal is dismissed. 

(c)The appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

Solicitors:
Richard Mark, Kerikeri, for Appellant
Palmer Macauley, Kerikeri, for Respondent