Newstart Holdings Ltd v Tidd Foundation Inc - [2005] NZCA 199

IN THE COURT OF APPEAL OF NEW ZEALAND
CA233/04
BETWEENNEWSTART HOLDINGS LIMITED

Appellant

ANDTIDD FOUNDATION INCORPORATED

Respondent

Hearing:14 June 2005

Court:William Young, Chambers and Robertson JJ
Counsel:R O Parmenter and C M Kersey for Appellant

K G Parker for Respondent

Judgment:9 August 2005

JUDGMENT OF THE COURT

A The appeal is dismissed.
BThe appellant must pay to the respondent costs in the sum of $6,000, plus usual disbursements.

REASONS
(Given by Chambers J)
The case of a disappearing right of way
[1]        Newstart Holdings Ltd, the appellant, owns land – in fact on two titles - in Victoria Street in Hamilton. Tidd Foundation Incorporated, the respondent, owns the adjoining land. Newstart has a building going right across its Victoria Street frontage. On the ground floor is Biddy Mulligan’s Hotel and on the upper floor an establishment called “Calendar Girls”. There is another building at the rear of the site which is occupied by a sign writer trading under the name of The Green Frog Sign Company. Tidd has a large building on its site. The ~~gap~~ space between Newstart’s building and Tidd’s is a right of way (on Tidd’s land) enabling vehicular access to Newstart’s carpark and The Green Frog. A plan showing the layout of the various buildings and the right of way is attached to this judgment.
[2]        Originally both the Newstart land and the Tidd land were owned by the Hamilton City Council and leased pursuant to perpetually renewable 21 year leases (Glasgow leases). In 1994, Newstart’s predecessors purchased the reversion from the council and as a result, by operation of law, the leasehold estates on their two titles merged into the fee simple. In 1996, Tidd did the same~~. As a consequence~~ and consequently, its leasehold estate also merged.
[3]        The right of way which the Newstart land had traditionally enjoyed over the Tidd land had been created under the Newstart leases. That right of way does not now appear on Newstart’s freehold titles, but Tidd’s title does record that its land remains subject to that right of way until 6 September 2010. That is the date on which one of the Newstart leases would have expired, but for the merger. The other lease would have expired on 4 August 2010; the right of way under that lease is also recorded on Tidd’s title.
[4]        The thoughtful reader, knowing there must be a dispute between Newstart and Tidd for this judgment to exist, might well be tempted to guess at this point that Tidd must be arguing that its title has been wrongly declared subject to the right of way, while Newstart is arguing that the right of way still exists. Not a bit of it. Tidd fully accepts that its land and its title remain subject to the right of way. It is Newstart which argues that the right of way has gone. This case is all about whether Newstart should get a new right of way over Tidd’s land pursuant to s…

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: [2005] NZCA 199
Decision Date: 9 August 2005

CaseChat Overview and Summary

The appeal in Newstart Holdings Ltd v Tidd Foundation Inc concerns the rights of way over land owned by the appellant, Newstart Holdings Ltd, and the adjoining land owned by the respondent, Tidd Foundation Inc. Newstart Holdings Ltd sought to establish a new right of way over Tidd Foundation Inc's land under section 129B of the Property Law Act 1952, claiming that it had lost its traditional right of way and that its land had become landlocked as a result. The High Court dismissed the application, finding that Newstart's land was not landlocked, and Newstart Holdings Ltd has appealed this decision.
The central issue before the court was whether Newstart Holdings Ltd's land was landlocked. Section 129B of the Property Law Act 1952 allows for the establishment of a right of way over a neighbour's land if the land in question is landlocked and there is no reasonable access to it. The court had to determine whether Newstart Holdings Ltd's land met the criteria for being considered landlocked, and if the traditional right of way had indeed been lost.
The Court of Appeal found that Newstart Holdings Ltd's land was not landlocked. Tidd Foundation Inc accepted that a right of way existed over its land until 2010, as recorded on its certificate of title. The court emphasised the importance of the current factual situation in determining s 129B applications, stating that "physical access" was a key factor. Given that Tidd Foundation Inc acknowledged the existence of the right of way and was willing to take steps to ensure it was recorded on Newstart Holdings Ltd's titles, the court found that Newstart Holdings Ltd's land currently enjoyed reasonable access to Victoria Street and was not landlocked. The appeal was dismissed, and Newstart Holdings Ltd was ordered to pay costs to Tidd Foundation Inc.

Orders