Mikitasov v Little - [2012] NZHC 1100

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2011-488-000564 [2012] NZHC 1100

UNDER the District Courts Act 1947, section 72

IN THE MATTER OF an appeal against the decision of the
District Court at Kaikohe

BETWEEN IGOR MIKITASOV Appellant

ANDALFRED NEWTON LITTLE First Respondent

ANDJAMES LOUIS VEZEY, MAHMOOD KHAN AND KAYE THERESA VEZEY Second Respondents

Hearing: 1 December 2011

Counsel: J A Browne for the Appellant
R C Mark for the Respondents

Judgment: 22 May 2012

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 22 May 2012 at 4.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors: Henderson Reeves Connell Rishworth P O Box 11 (DX AP24505) Whangarei 0140 for the Appellant
R C Mark P O Box 172 Kerikeri 0245 for the Respondents

MIKITASOV v LITTLE and ORS HC WHA CIV-2011-488-000564 [22 May 2012]

[1] The appellant, Igor Mikitasov, was successful in obtaining an order from the District Court extinguishing an easement creating a right of way across land that he owns in the Bay of Islands. The first and second respondents, who were the holders of the dominant tenement, did not oppose the extinguishment of the easement but they did seek compensation. Mr Mikitasov objected to paying this. The District Court ordered him to pay compensation of $12,000 each, plus related costs, to the first and second respondents. He now appeals against the awards of compensation. The appeal is opposed.

Facts

[2] The easement created a 1.83m wide right of way over a block of land owned by the appellant. It still extends over a separate adjacent block of land owned by the appellant’s wife. The best appreciation of the impact of the easement on the subject land and the neighbouring properties that held the dominant tenement can be seen from viewing the “plan of easements and areas” that was part of the affidavit of Kaye Vezey and which is now attached to this judgment. The appellant’s block of land is the lot marked “F” on the plan and his wife’s block is the lot marked “G”.

[3] Technically, the easement gave the holders of the dominant tenement the right of access to an esplanade reserve bordering the foreshore. But in fact their ability to enjoy having access to the foreshore was significantly hampered by illegal intrusions caused by building work carried out by a previous owner of lot F, as well as naturally occurring damage to the esplanade reserve that had caused the local territorial authority to decide against repairing a stairway giving access from the reserve to the foreshore. These obstacles meant that there was little likelihood of the right of way being used.

Appellate principles

[4] The parties are agreed on the principles applicable to an appeal of this nature. They each acknowledge that this is an appeal against the exercise of a discretion and, accordingly, the appellant must demonstrate that the Judge took into account irrelevant factors, failed to take account of…

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.

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Details

Case: [2012] NZHC 1100
Decision Date: 22 May 2012

CaseChat Overview and Summary

In this case, Igor Mikitasov sought to appeal a decision of the District Court that ordered him to pay compensation to Alfred Newton Little and others after extinguishing an easement on his land. The easement had created a right of way over Mikitasov's land, but its practical use was significantly impaired by various obstacles. Although the respondents did not oppose the extinguishment of the easement, they sought compensation for the loss of their rights. The District Court awarded $12,000 each to the first and second respondents, plus related costs. Mikitasov appealed this decision, arguing that compensation should not have been awarded and, if it was, the amount should be less than that ordered by the District Court.

The central legal issue before the court was whether compensation should have been awarded for the extinguishment of the easement, and if so, what the appropriate quantum of compensation should be. The court considered the reasoning of the District Court and the valuation evidence provided by the parties. The court noted that the extinguishment of the easement had resulted in enhanced benefits for Mikitasov, as he could now prevent any future attempts to exercise rights of access, thereby increasing the security and privacy of his property. The court also considered the valuation evidence provided by two expert valuers, Mr Malone and Mr McNally. The court found that the District Court had appropriately assessed the evidence and applied the correct legal principles in determining the quantum of compensation.

The High Court upheld the District Court's decision, finding that the reasoning was sound and that the award of compensation was reasonable and properly open to the court. The court dismissed the appeal and ordered Mikitasov to pay costs and reasonable disbursements to the respondents. The court concluded that the District Court had correctly applied the relevant legal principles and that the appeal did not meet the threshold for interfering with the exercise of discretion. The court found that the compensation awarded was a fair reflection of the loss of rights experienced by the respondents.

Orders