Okey v Public Trustee - [2015] NZHC 3318

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2015-454-102 [2015] NZHC 3318

IN THE MATTER OF
an application pursuant to the Declaratory

Judgments Act 1908

BETWEEN

RONALD GORDON OKEY First Plaintiff

MCKENZIE MCPHAIL CORPORATE TRUSTEES LIMITED

Second Plaintiff

AND

THE PUBLIC TRUSTEE First Defendant

PAULINE ANNE KINGSBEER Second Defendant

PAULINE ANNE KINGSBEER AND BERNADETTE PLAW

Third Defendants

CIV-2013-454-458

UNDER The Property Law Act 2007

IN THE MATTER OF sections 316 and 317, application for extinguishment of easement and damages

BETWEEN PAULINE ANNE KINGSBEER AND BERNADETTE PLAW
Plaintiffs

ANDRONALD GORDON OKEY First Defendant

MCKENZIE MCPHAIL CORPORATE TRUSTEES LIMITED
Second Defendant

Hearing: 18 November 2015

RONALD GORDON OKEY v THE PUBLIC TRUSTEE [2015] NZHC 3318 [18 December 2015]

Counsel:
C G O'Connor and P R Strachan for the plaintiffs in proceeding

CIV-2013-454-458 and for the second and third defendants in proceeding CIV-2015-454-102

P H Surridge and C Robertson for the defendants in proceeding
CIV-2013-454-458 and for the plaintiffs in proceeding CIV-
2015-454-102
G Mason for the first defendant in proceeding
CIV-2015-454-102

Judgment:

18 December 2015

JUDGMENT OF ASSOCIATE JUDGE SMITH

[1] The second and third defendants in proceeding CIV-2015-454-102 (the Kingsbeer parties) apply to strike out the plaintiffs’ claims in that proceeding (which I will refer to as the declaratory judgment proceeding). In the alternative, they ask for an order consolidating the declaratory judgment proceeding with proceeding CIV-2013-454-458, a proceeding commenced by them in December 2013 which I will refer to as the right of way proceeding.

[2] The first defendant in the declaratory judgment proceeding (the Public Trustee) also applies to strike out the plaintiffs’ claims in that proceeding. In the alternative, the Public Trustee asks for summary judgment.

[3] The strike-out, summary judgment and consolidation applications were first called in this Court in Palmerston North on 30 October 2015. The Kingsbeer parties were ready to proceed with their strike-out and consolidation applications that day (no notice of opposition had been filed by the plaintiffs in the declaratory judgment proceeding), but Mr Surridge sought an adjournment on the basis that he had not understood that the Kingsbeer parties’ applications were to be heard that day. I adjourned the applications of both the Public Trustee and the Kingsbeer parties to
18 November 2015 for a defended hearing, and gave appropriate directions for the filing of further affidavits and written submissions. I also ordered the plaintiffs in the declaratory judgment proceeding (who I will refer to hereafter as the Okey parties) to pay costs of $1,200 to the Kingsbeer parties, on the basis that the Okey parties had failed to file any notice of opposition and the Kingsbeer parties, who

were ready to proceed, would incur additional costs if the hearing of their applications was adjourned.

[4] By memorandum dated 3 November 2015 counsel for the Okey parties asks me to recall that costs judgment, substantially on the basis that the Okey parties had received no (or no sufficient) notice that the Kingsbeer parties’ applications would or might proceed on 30…

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 Public Trustee

Details

AGLC: Okey v Public Trustee [2015] NZHC 3318
Case: [2015] NZHC 3318
Decision Date: 18 December 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Okey v Public Trustee saw the plaintiffs, Ronald Gordon Okey and McKenzie McPhail Corporate Trustees Limited, bringing claims against the Public Trustee, Pauline Anne Kingbeer, and Bernadette Plaw. The plaintiffs sought to enforce an easement over the Trust land, which was previously owned by the late Mr Don Kingsbeer. The plaintiffs argued that they had an equitable interest in the Trust land and sought a declaration that the transmission of the land to the Public Trustee was defective. They also sought damages and costs. The defendants, on the other hand, applied to strike out the plaintiffs' claims, consolidate the proceedings, and for summary judgment.

The court examined the issues of whether the claims against the Public Trustee and the other defendants were tenable, whether the proceedings should be consolidated, and whether the costs order made previously should be recalled. The court found that the claims against the Public Trustee were not arguable, as the plaintiffs had not suffered any loss from the transmission of the land. The court also found that the claims against the other defendants were frivolous, as there was no need for a declaration and no apparent basis for any claim for damages. The court granted summary judgment for the Public Trustee, struck out the claims against the other defendants, and dismissed the recall application. The court did not find it necessary to consolidate the proceedings at that time.

Orders