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.

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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…

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 Mikitasov v Collins

Details

AGLC: Mikitasov v Collins [2008] NZCA 390
Case: [2008] NZCA 390
Decision Date: 25 September 2008

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Igor Alexandrovich Mikitasov against a decision by Associate Judge Robinson in an easement dispute between Mikitasov and Bernard John Collins. The dispute involved a right of way over Collins' property in favor of Lot 2, owned by Mikitasov, and a separate footpath easement between Lot 2 and 28 Binnie Street. The primary issue was whether Mikitasov could use the easement to access 28 Binnie Street, which Associate Judge Robinson had ruled against in the initial decision. The appeal raised several issues, including the relevance of the registered footpath easement, the validity of the caveat lodged by Mikitasov, and the appropriateness of the injunction granted against Mikitasov. The Court of Appeal found that the registered footpath easement was irrelevant to the case, the caveat was improperly allowed to lapse as it did not sufficiently address the easement issue, and the injunction was appropriately granted based on the evidence presented. Consequently, the appeal was dismissed, and Mikitasov was ordered to pay costs for the standard appeal on a band A basis and usual disbursements.

Orders