Mikitasov v Little
[2013] NZCA 604
•2 December 2013 at 11:30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA444/2013 [2013] NZCA 604 |
| BETWEEN | IGOR MIKITASOV |
| AND | ALFRED NEWTON LITTLE JAMES LOUIS VEZEY, MAHMOOD KHAN AND KAYE THERESA VEZEY Second Respondents |
| Court: | Randerson, French and Miller JJ |
Counsel: | Applicant in Person |
Judgment: (On the papers) | 2 December 2013 at 11:30 am |
JUDGMENT OF THE COURT
AThe application for special leave to appeal is dismissed.
BThe applicant must pay costs to the respondents for a standard application on a band A basis.
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
The applicant applies for special leave under s 67 of the Judicature Act 1908 to appeal against a decision of Duffy J given in the High Court at Whangarei.[1] By that decision, Duffy J dismissed an appeal against a judgment of Judge McElrea in the District Court in relation to the extinguishment of an easement over the applicant’s property.[2]
[1]Mikitasov v Little [2012] NZHC 1100, (2012) 13 NZCPR 271.
[2]Mikitasov v International Recruitment Partners Ltd DC Kaikohe CIV-2010-027-31, 22 July 2011, recalled and reissued on 15 August 2011.
The applicant sought leave in the High Court to appeal to this Court against Duffy J’s decision but his application was declined by Allan J.[3]
Background
[3]Mikitasov v Little [2012] NZHC 1340.
The applicant owns a property in the Bay of Islands that was subject to a right of way in favour of nine other properties. The relevant easement had been granted originally to provide access to an esplanade reserve by the owners of nearby properties. Over time, the physical access had become obstructed and unusable for practical purposes.
The applicant applied to the District Court for an order under s 317 of the Property Law Act 2007 extinguishing the easement. There was no opposition from the holders of the dominant tenements but two of them, the respondents, sought reasonable compensation under s 317(2).
Judge McElrea made an order extinguishing the easement and ordered Mr Mikitasov to pay compensation to each of the respondents in the sum of $12,000. In doing so, the Judge applied the principles discussed by this Court in Jacobsen Holdings Ltd v Drexel, a case dealing with access to landlocked land.[4] Judge McElrea found that the principles adopted in that case for the assessment of compensation were equally applicable in cases involving the extinguishment of easements. In Jacobsen Holdings, this Court held:[5]
Under the section the Court is not bound to award compensation, but usually it will be equitable between the parties to do so and to assess it on the footing of what a willing grantor and grantee of the easement or vendor and purchaser of the fee simple would agree in friendly negotiation.
[4]Jacobsen Holdings Ltd v Drexel [1986] 1 NZLR 324 (CA).
[5]At 329.
Judge McElrea found that the extinguishment of the easement was a real benefit to the applicant and, correspondingly, a real detriment to the respondents.
In the High Court, Duffy J accepted that the analogy between landlocked land cases and those involving the extinguishment of easements was appropriate and could not find any basis to fault Judge McElrea’s reasoning.
Grounds for the application
The applicant submits that there are four questions of law that ought to be decided by this Court. In summary, they may be refined to two:
(a)Was it correct in law for the principles in Jacobsen Holdings to be applied without modification to an application for extinguishment under s 317 of the Property Law Act?
(b)Does “reasonable compensation” under s 317 require first the identification of a loss to an affected party, without regard to any benefit that might arise to the applicant?
The respondents submit that it was appropriate to apply the Jacobsen Holdings case to the assessment of compensation under s 317 and that the questions of law are not of general importance such as to warrant the attention of this Court.
Discussion
There is no dispute about the principles to be applied on an application for leave under s 67. An appeal under that provision must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.[6] On a second appeal, the Court is not simply engaged in the general correction of error. Its primary function is to clarify the law and to determine whether it has been properly construed and applied by the courts below. It follows that not every alleged error of law will be of sufficient importance, either generally or to the parties, as to justify the further pursuit of litigation which has already been twice considered and ruled upon by a court. In the end, the overriding principle must be the requirements of justice.[7]
[6]Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
[7]Snee v Snee (1999) 13 PRNZ 609 (CA) at [22]; and Cuff v Broadlands Finance Ltd [1987] 2 NZLR 343 (CA) at [346]–[347].
In the present case, both the District Court and the High Court are in agreement that it was appropriate to apply the Jacobsen Holdings principles to the assessment of compensation under s 317. Neither court was able to discern any material difference between the assessment of compensation in cases involving landlocked land and in those involving the extinguishment of an easement.
The applicant’s argument is that in the former case, land is compulsorily acquired from one party and transferred to, or accessed by, another. It is said that where an easement is modified or extinguished under s 317, this will not always be the case. The respondents submit that in both cases, there will usually be a benefit to one party and a corresponding loss to another.
Judge McElrea found there was a benefit to the applicant arising from the extinguishment of the easement and a detriment to the respondents. The Judge regarded the benefit/loss assessment as opposite sides of the same coin. He considered that the applicant’s determination to remove the easement from his property illustrated that its presence, even in an impracticable form, was a real interference with the applicant’s property rights. The Judge thought this was entirely understandable, even if it was only based on the possibility that some of the respondents might one day try to exercise their legal rights. This was a prospect that the Judge considered could not be regarded as fanciful or insignificant.[8]
[8]Mikitasov v International Recruitment Partners Ltd, above n 2, at [27]–[28].
We are satisfied there is no reasonably arguable question of law that would justify the grant of leave. The assessment of reasonable compensation necessarily involves consideration of the prospective benefits and losses both to the grantor and grantee. That is inherent in the concept of the willing buyer/willing seller assessment. On the findings in the District Court, the respondents were giving up rights they might later assert while the applicant was receiving the benefit of the removal of an impediment on his title. Judge McElrea’s careful assessment demonstrates that he took all these factors into account. It is not reasonably arguable that the Court was required first to consider whether the respondents had suffered any loss.
Conclusion
Given our view that the questions raised do not disclose arguable questions of law, it follows that there is no proper basis on which to grant special leave to appeal.
The application for special leave to appeal is dismissed.
The applicant must pay costs to the respondents for a standard application on a band A basis.
Solicitors:
Richard Mark, Kerikeri for Respondents
3