Hearing:	12 October 2017
Court:	Kós P, Woolford and Collins JJ
Counsel:	J Toebes and N J G Smith for Appellants C J Tennet and P R Strachan for the Respondent
Judgment:	21 December 2017 at 3.00 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
BA declaration is made that there is an equitable easement in the form of a vehicular right of way over Cessna Place on the respondents’ property in favour of the appellants.
CAn order is made under s 313 of the Property Law Act 2007 that the appellants pay 75 per cent and that the respondents pay 25 per cent of the costs to upgrade the vehicular right of way to the standard required for use by trucks to the satisfaction of the Palmerston North City Council.
DThe respondents must pay the appellants costs for a standard appeal on a band A basis and usual disbursements. We certify for two counsel.

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REASONS OF THE COURT

(Given by Woolford J)

Introduction

This appeal arises from a dispute over an unregistered right of way easement on industrial land in Palmerston North. The appellants, Mr Okey and McKenzie McPhail Corporate Trustees Ltd, have been using the right of way over the property, now owned by the PAK Trust — of which the respondents Ms Kingsbeer and Ms Plaw are trustees — since 1986. A dispute has arisen because of increased use of the right of way by trucks visiting the appellants’ property, which has taken a toll on the quality of the right of way surface.
The respondents applied to the High Court for an order extinguishing the equitable easement over the land. Alternatively, they sought an order that the appellants pay the total cost of upgrading the right of way to the standard required for use by trucks. In a decision of the High Court, Cull J held that the equitable grant of easement was invalid, and, in the alternative, that the easement should be extinguished by the Court.[1] The appellants appeal.

Factual background

[1]Kingsbeer v Okey [2017] NZHC 57.

The subject matter of this appeal is a private formed road, called Cessna Place, wholly situated on the respondents’ property in a Palmerston North industrial zone and which allows access to buildings on an adjoining property owned by the appellants.
Originally, Don Kingsbeer, the father of Ms Kingsbeer, owned all the land at issue which comprised several lots held in one certificate of title with a total area of 1.3437 hectares. In 1986, Mr Kingsbeer created three new lots by re-subdividing the existing allotments into Lots 1, 2 and 3. Lot 2 was retained by Mr Kingsbeer and Lot 3 was sold to the appellants’ predecessor in title, R Okey Ltd.
The…

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 Okey v Kingsbeer

Details

AGLC: Okey v Kingsbeer [2017] NZCA 625
Case: [2017] NZCA 625
Decision Date: 21 December 2017 at 3.00 pm

CaseChat Overview and Summary

This appeal arises from a dispute over an unregistered right of way easement over a piece of industrial land in Palmerston North. The appellants, Mr Okey and McKenzie McPhail Corporate Trustees Ltd, have been using the right of way over the respondents’ property since 1986. A dispute has arisen because of increased use of the right of way by trucks visiting the appellants’ property, which has taken a toll on the quality of the right of way surface. The respondents applied to the High Court for an order extinguishing the equitable easement over the land. Alternatively, they sought an order that the appellants pay the total cost of upgrading the right of way to the standard required for use by trucks. The High Court held that the equitable grant of easement was invalid and, in the alternative, that the easement should be extinguished by the Court. The appellants appeal. The issues for the Court of Appeal were: (a) whether an equitable easement existed in favour of the appellants; (b) whether s 348 of the Local Government Act 1974 had any bearing on the easement; (c) whether the equitable grant of easement should be modified or extinguished because of a change in the use of the land since its creation; and (d) if the equitable easement remained in existence, what orders should be made in relation to the upgrade of the right of way. The Court of Appeal held that there was an equitable easement in favour of the appellants, and that it was not invalid as a result of s 348 of the Local Government Act. The Court found that there was no change in the use of the land sufficient to warrant modification or extinguishment of the easement. The Court of Appeal made orders that the appellants should pay 75 per cent of the costs of upgrading Cessna Place to the standard required for use by trucks to the satisfaction of the Council, and that the respondents should pay the remaining 25 per cent. The respondents must pay the appellants costs for a standard appeal on a band A basis and usual disbursements.

Orders