Pennington Trust Company Limited - [2022] NZHC 2332

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1040

[2022] NZHC 2332

IN THE MATTER

AND
of the Property Law Act 2007 Part 6 Subpart 3 Landlocked Land

IN THE MATTER

of Registered Proprietor of Record of Title: NA565/251 John Giles

PENNINGTON TRUST COMPANY LIMITED

Applicant

Hearing: 8 September 2022

Appearances:

A Bush for the Applicant

K F Gould for interested party C and B Wheeler
R G Lauder, a person directed to be served, on his own behalf

Judgment:

12 September 2022

JUDGMENT OF GORDON J

This judgment was delivered by me
on 12 September 2022 at 4 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:
Harold Kidd Law, Auckland DMG Solicitors, Auckland K F Gould, Auckland

Copy to: R G Lauder

PENNINGTON TRUST COMPANY LTD [2022] NZHC 2332 [12 September 2022]

Introduction

[1] Pennington Trust Company Ltd (Pennington) is the registered proprietor of 11 Mozeley Avenue, Devonport, Auckland. This property is only accessible by a right of way easement (the ROW). Although the owners of 11 Mozeley Ave have used the ROW for many years, they do not have a legal right to do so. Pennington now seeks an order under s 328 of the Property Law Act 2007 (the Act), granting reasonable access to 11 Mozeley Ave on the basis that it is otherwise landlocked.

[2] Cecily and Brian Wheeler (the Wheelers) who own and live at 5 Mozeley Ave filed what is styled as a Notice of Opposition. While they did not formally oppose the application, the Wheelers asked that certain conditions be imposed if the application was granted. Their position at the hearing was that provided the Court is satisfied it has jurisdiction to make the order they do not oppose the application. At the hearing Mr Gould, counsel for the Wheelers, abandoned the request for conditions to be imposed as set out in the Notice of Opposition. But he asked that the Court emphasise one matter which I will come to in due course.

[3] The registered proprietors of 13 Mozeley Ave, Robert Lauder, Erica Lauder and Cameron Drew, filed an appearance reserving rights. Their property does not have the legal benefit of the right of way. Mr Lauder appeared at the hearing. He supports the application but did not seek to make any submissions.

[4] At the commencement of the hearing counsel for Pennington, Mr Bush, indicated that he wished to amend the application to include services, namely the right to convey electricity, telecommunications, water and gas, and drain stormwater and sewage. After discussion with the Court and acknowledging that others who have the legal benefit of the right of way did not have notice of the proposed amendment, Mr Bush did not pursue the application to amend.

[5]The hearing accordingly proceeded on the basis of the application as filed.

Background

[6] On 17 June 1881, the ROW was created for the benefit of five properties (not…

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.

Keep reading for free

Create a free CaseChat account to read Pennington Trust Company Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NZHC 2332
Decision Date: 12 September 2022

CaseChat Overview and Summary

Pennington Trust Company Limited has applied to the High Court of New Zealand, Auckland Registry, for an order granting reasonable access to their property, 11 Mozeley Avenue, Devonport, Auckland, which is currently landlocked due to the absence of a legal right to use a right of way (ROW) easement. The Wheelers, owners of an adjoining property, filed a Notice of Opposition, but did not formally oppose the application. The registered proprietors of 13 Mozeley Avenue, Robert Lauder, Erica Lauder, and Cameron Drew, filed an appearance reserving rights but did not make any submissions at the hearing.

The court was required to decide whether the property in question was landlocked, and if so, whether an order should be made under s 328 of the Property Law Act 2007, granting reasonable access to the landlocked land. The court had to consider the nature and quality of access at the time of purchase, the circumstances under which the land became landlocked, the conduct of the parties, and the potential hardship caused by granting or refusing the order.

The court found that the property was landlocked as it lacked a legal right to use the ROW, despite having physical access. The court noted that the absence of a legal right rendered the property practically unsaleable, causing significant financial hardship to the applicant. The court considered that the circumstances under which the land became landlocked were likely due to an oversight in or after 1881 when the ROW was created. The court also found that any potential hardship caused to the Wheelers by granting the order was outweighed by the hardship that would be caused to Pennington if the order was refused.

The court granted the application and made an order under s 328 of the Property Law Act 2007, granting reasonable access by way of a right of way for 11 Mozeley Avenue over the land in Record of Title NA565/251. The order is to be entered in the Register as a grant in favour of Record of Title NA565/277 by direction of the Court to the Registrar-General of Land Information New Zealand. Costs were ordered to lie where they fell.

Orders