Okey v Kingsbeer - [2024] NZHC 2426

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2024-454-010

[2024] NZHC 2426

UNDER the Property Law Act 2007

IN THE MATTER OF

an easement at Cessna Place, Palmerston North

BETWEEN

RONALD GORDON OKEY by his

litigation guardian Ross John Hadwin Applicant

AND

PAULINE ANNE KINGSBEER and

BERNADETTE PLAW as trustees of THE PAK TRUST

Respondents

Hearing: 27 August 2024

Counsel:

A S Butler KC and D Qiu for Applicants J K Mahuta-Coyle for Respondents

Judgment:

28 August 2024

JUDGMENT OF GRAU J

[Application for stay of execution of judgment]

Introduction

[1] On 20 August 2024, I granted the respondents’ application to extinguish the equitable right of way easement over a roadway at Cessna Place, Palmerston North.1 My decision has removed the ability of the applicant and his tenant, Mirage Signs Ltd (Mirage),2 to use the roadway to access the applicant’s property and the tenant’s business premises (a warehouse) respectively.

1 Kingsbeer v Okey [2024] NZHC 2323.
2 Mirage is also sometimes referred to as “Mirage Visual Ltd”, but Mirage Signs Ltd is the name of the tenant as per the current deed of lease.

OKEY v KINGSBEER [Application for stay of execution of judgment] [2024] NZHC 2426 [28 August 2024]

[2] The applicant filed a notice of appeal on the day my decision was released. He seeks a stay of the judgment pending determination of the appeal. The respondents oppose.

[3] I declined the application for a stay immediately following the hearing. My reasons now follow.

The context of the dispute about the roadway

[4]The general background is set out in my substantive decision:3

[1] This proceeding, the latest instalment in a long-running dispute, is an application under the Property Law Act 2007 (PLA) for an order extinguishing an easement over a roadway in Palmerston North. The roadway is on the applicants’ property and the respondents have had the benefit of the easement since 1986. The roadway has been extensively damaged and continues to deteriorate. The respondents are largely responsible for that damage, caused by heavy vehicles accessing one of the respondent’s (Mr Okey’s) and his tenant’s businesses.

[2] In 2017, the High Court found the easement was invalid and, in the alternative, extinguished it. Later the same year, the Court of Appeal overturned that decision, finding that an equitable easement had been in place since 1986 and no grounds for extinguishment were made out. The Court of Appeal, however, ordered the respondents to pay 75 per cent and the applicants 25 per cent of the costs to upgrade the roadway. In 2024, some six- and-a-half years later, the roadway has still not been upgraded, nor has any proposal for upgrading even been agreed to. That state of affairs remains despite the parties twice returning to the High Court and consenting to orders under s 313 of the PLA to bring their dispute to an end, and despite a judicial warning that a failure by the respondents to…

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 [2024] NZHC 2426
Case: [2024] NZHC 2426
Decision Date: 28 August 2024

CaseChat Overview and Summary

Ronald Gordon Okey, through his litigation guardian Ross John Hadwin, sought to appeal the decision to extinguish an easement over a roadway in Cessna Place, Palmerston North, which was made on 20 August 2024. The respondents, Pauline Anne Kingsbeer and Bernadette Plaw as trustees of the Pak Trust, opposed the application. The court was required to decide whether to grant a stay of execution of the judgment pending the determination of the appeal, and if so, on what terms.

The applicant argued that a stay was necessary to prevent substantial injustice, particularly to his tenant, Mirage Signs Ltd, which would be unable to access its warehouse without the roadway. The respondents opposed the stay, arguing that it would allow the applicant to continue to degrade the already damaged roadway and that there were alternative means of accessing the warehouse. The court considered the factors set out in Keung v GBR Investments Ltd, including the strength of the appeal, the potential for injury to the respondents, and the effect on third parties. The court found that the applicant's appeal was not strong enough to warrant a stay, as the applicant had failed to comply with previous court orders and there was no evidence of significant harm to the tenant if the stay was not granted. The court also noted that the applicant had not made any contingency plans for alternative access.

The court declined the application for a stay, finding that the balance of convenience did not favour granting the stay. The court emphasised that the applicant had been aware of the risks to his access since February 2024 and had failed to take any proactive steps to mitigate those risks. The court also noted that the respondents would likely incur additional costs if the stay was granted and the appeal was unsuccessful. The court ordered that costs should follow the event on a 2B basis with allowance for second counsel.

Orders