Oxborough v MacDonald - [2018] NZHC 2817

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-001054

[2018] NZHC 2817

BETWEEN
STEPHEN OXBOROUGH and LYNDA SUSAN OXBOROUGH and DVA 2009

TRUSTEES LIMITED as trustees of the OXBOROUGH FAMILY TRUST

Plaintiffs

AND

SCOTT STEWART MacDONALD and VALLANT HOOKER TRUSTEES

LIMITED as trustees of the MacDONALD FAMILY TRUST

Defendants

Hearing: 15 October 2018

Appearances:

DJG Cox for the Plaintiffs

B Murray for the Defendants

Judgment:

31 October 2018

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by me on
31.10.18 at 3:30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Rennie Cox, Auckland
Vallant Hooker & Partners, Auckland

OXBOROUGH v MacDONALD [2018] NZHC 2817 [31 October 2018]

Introduction

[1] The parties are neighbours of adjoining lands at Rangitāwhiri, Motu Aotea (Tryphena, Great Barrier Island). They are also trustees of their respective family trusts. At issue is what the plaintiffs claim to be a binding boundary adjustment agreement relating to the encroachment by the plaintiffs’ carports over the defendants’ land (the Boundary Agreement).

[2] The plaintiffs seek summary judgment requiring the defendants to specifically perform the Boundary Agreement by executing the relevant Auckland Council and Land Information New Zealand documentation.

[3] The terms of the boundary agreement are in dispute. The defendants say that this is not a boundary adjustment involving a transfer of land, but simply an informal agreement in which the plaintiffs paid $15,000 compensation to the defendants for an encroachment.

[4] The Boundary Agreement was not signed by Vallant Hooker Trustees Ltd (VHTL), one of the defendant trustees. The defendants say that for summary judgment there must be unequivocal evidence that all trustees have been bound by an agreement to transfer land, whether by signature or holding out. They submit that there is no such evidence in this case.

[5] The critical issues I must determine are twofold and arise in the context of summary judgment where the plaintiffs must establish that the defendants have no defence to the claim: was there a boundary adjustment agreement for the transfer of land (that is, what were the terms of the agreement); and have both defendant trustees become bound by that agreement?

Background

[6] The two properties share a common boundary along the south-west boundary of the plaintiffs’ property. A portion of two carport buildings, located on the plaintiffs’ south-west boundary, encroach over the boundary of the plaintiffs’ property and onto the defendants’ land. The area of encroachment, according to a survey, is 173 m².

[7] In June 2006 the plaintiffs commissioned a surveyor to prepare a survey plan of the property in order to address the encroachment issue.

[8] On 12 January 2013 a meeting took place between the plaintiff, Mrs Oxborough, and the defendant, Mr MacDonald. They discussed the survey plan that Mrs Oxborough had brought with her. The plaintiffs allege that a verbal agreement in principle was reached at that meeting. That agreement provided that:

(a)The plaintiffs would purchase…

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 Oxborough v MacDonald

Details

AGLC: Oxborough v MacDonald [2018] NZHC 2817
Case: [2018] NZHC 2817
Decision Date: 31 October 2018

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, considered a dispute between neighbours, the Oxboroughs and the MacDonalds, over a boundary adjustment agreement. The Oxboroughs claimed the MacDonalds breached a boundary adjustment agreement to resolve an encroachment of the Oxboroughs' carports over the MacDonalds' land. The Oxboroughs sought summary judgment requiring the MacDonalds to execute the necessary documentation for the boundary adjustment. The MacDonalds argued that the agreement was not binding as it did not involve a transfer of land and that not all trustees were bound by the agreement.

The court found that there was a clear and unequivocal boundary adjustment agreement between the Oxboroughs and the MacDonalds, evidenced by the handwritten annotations on a survey plan and the email exchange confirming the boundary adjustment and the payment of $15,000. However, the court held that the Oxboroughs did not prove that both defendant trustees were bound by the agreement. The MacDonalds' family trust deed required unanimity for any decision, and the court found that the evidence regarding whether the other trustee, Vallant Hooker Trustees Ltd, had granted ostensible authority to the other trustee, Scott MacDonald, was conflicting and should be tested at trial.

The court dismissed the application for summary judgment, noting that the prudent approach would be for the parties to negotiate a settlement. The court directed a case management conference to address the potential transfer of the proceedings to the District Court.

Orders