Rasmussen v Disputes Tribunal at Pukekohe

[2017] NZHC 2812

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-910 [2017] NZHC 2812

UNDER

the Judicial Review Procedure Act 2016

BETWEEN

PATRICIA RASMUSSEN AND KEVIN LANCE RASMUSSEN

Applicants

AND

THE DISPUTES TRIBUNAL AT PUKEKOHE

First Respondent

KIM CRYNS AND HARRY CRYNS Second Respondents

Hearing:	8 November 2017
Counsel:	P J Broad for Applicants R J Hollyman for Counties Power (Interested Party) No appearance by or on behalf of Second Respondents
Judgment:	16 November 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 16 November 2017 at 2:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Peter Broad (Auckland) for Applicants

Maberly & Co (Auckland) for Counties Power (Interested Party)

RASMUSSEN v THE DISPUTES TRIBUNAL AT PUKEKOHE [2017] NZHC 2812 [16 November 2017]

Introduction

[1]     The Rasmussens and the Cryns were neighbours.   They fell out.   The Rasmussens  expressed their  animus  by cutting off the Cryns’ electricity supply. They could do that because the electricity flowed first to a pole on the Rasmussens’ property and thence, via underground cable, to the Cryns’ house.

[2]      The Cryns’ tropical fish died.  They had to quickly relocate the contents of their freezer.   The house was uninhabitable so the family (Mr and Mrs Cryns and their two young children) had to move out and rent accommodation.

[3]     The Disputes Tribunal was called on to determine various claims and counterclaims between the parties.  One, decided separately,1  was the Cryns’ claim for $13,678.61 for damages arising from their electricity supply being terminated. The Tribunal awarded them $6,000.   It found that the Rasmussens had breached a contractual obligation to the Cryns.

[4]      The Rasmussens now seek judicial review of the Tribunal’s decision on the ground that the Tribunal had no jurisdiction to determine the Cryns’ claim:

10.      The cable running under the applicant’s land is part of the applicant’s

land and not a chattel.

11.       The issue before the Tribunal was whether the second respondent had a right to enjoy an uninterrupted supply of electricity from the cable.

12.That right was a property right and was either an estate or an interest in land.

13.In deciding the (sic) whether the second respondent had such a right the first respondent was required to determine the title to an estate or interest  in  land  and  went  beyond  deciding  contractual  personal rights.

14.The decision of the first respondent amounted to a finding that the second respondent had an equitable easement over the applicant’s land giving the second respondent the right to be supplied electricity from the cable.

15.In reaching that decision the second respondent determined the title to an estate or interest in land.

1      Rasmussen v Cryns DC Pukekohe CIV-2016-057-79, 26 October 2016.

16.The  Disputes  Tribunals  Act  1988  section  11(5)(b)  specifically excludes the Tribunal from deciding any case where the title to any estate or interest in land is in question.

17.Although approached on the basis of contract by the first respondent the right to use the cable called into question the title to an estate or interest in land. In determining that issue in the second respondent’s favour the first respondent exceeded its jurisdiction.

[5]      The relevant factual background, taken from the Tribunal’s decision, is:

(a)      The Cryns’ predecessors in title (the Kuipers) made an oral agreement with the Rasmussens by which the Kuipers were permitted to lay the power cable from a point on the Rasmussens’ property to their own property.

(b)This agreement was part of a larger oral agreement by which the Rasmussens and the Kuipers shared the cost of having mains power connected to both their properties.

(c)      No formal easement was granted.

[6]      The Tribunal held that the Cryns were entitled to the benefit of the agreement between  the  Rasmussens  and  the  Kuipers  through  the  operation  of  s 4  of  the Contracts (Privity) Act 1982.  This section permits people who are not parties to a contractual  promise  to  claim  the  benefit  of  the  promise  so  long  as  certain prerequisites exist.

[7]      The crucial finding of the Tribunal is:

I  find  that  there  is  such  a  verbal  contract  made  between  Mr  and Mrs Rasmussen and Mr Kuiper at the material time of laying of underground cables  on  Mr  and  Mrs  Rasmussen’s  property  that  confers  a  benefit  to Mr Kuiper and subsequent owners of 66B Tramgully Road. The agreement was for Mr and Mrs Rasmussen to keep the cable on their land and this obligation to do so is enforceable at the suit of Mr Kuiper and subsequent owners of 66B Tramgully Road (including Mr and Mrs Cryns) for Mr and Mrs Rasmussen to perform that promise.

Issue

[8]      The sole issue for me to determine is whether the Tribunal had jurisdiction in contract to order the Rasmussens to make a payment to the Cryns.  If it did, it is not my concern whether it was right to do so.2   The sole ground of review is excess of jurisdiction.

Discussion

[9]      Section 10(1)(a) of the Disputes Tribunal Act 1988 (“the Act”) provides that the Tribunal has jurisdiction in respect of a claim founded on contract or quasi- contract.

[10]     The limitation on the jurisdiction of the Disputes Tribunal in respect of land is set out in s 11(5) of the Act:

Except  as  provided  in  an  enactment  …,  the  Tribunal  shall  have  no jurisdiction in respect of any claim—

(a)       for the recovery of land or any estate or interest in any land:

(b)      in which the title to any land, or any estate or interest in any land, or to any franchise is in question:

…

[11]     It is perfectly possible for a person to contract with the registered proprietors of land to the effect that the proprietors will allow their land to be used by the person without that person thereby acquiring an interest in the land.3

[12]     Here, the Tribunal found that there was a contract between the Rasmussens and Mr Kuiper (the benefit of which was passed by Mr Kuiper to the Cryns as his successors in title) by which the Rasmussens agreed to allow Mr Kuiper to lay a cable on their land for the purpose of conveying electricity.   That finding did not

require  the Tribunal  to  infer  the  existence  of  an  equitable  easement,  a  type  of

2      Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1163 at [40]. The Court of Appeal upheld the decision in Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665.

3      See Property Law Act 2007, s 206(4).

incorporeal hereditament.4    The Tribunal did not find that the contract bound the Rasmussens’ successors in title.  It was a personal obligation amounting to no more than the grant of a licence.

[13]     The Cryns simply alleged breach of a contract permitting the use of land. They did not attempt to recover an estate or interest in land, nor was an estate or interest in land in question.  They did not allege there was an estate or interest in land, and it is not necessary for there to be one in order for them to succeed.

[14]     Finally, the cable is a fixture.5   The Cryns’ claim was about their contractual

right to use the cable to convey electricity.  Section 11(6) of the Act provides:

In subsection (5) land does not include fixtures.

[15]     The Tribunal had jurisdiction to determine a dispute in contract relating to the use of a fixture to land.

[16]     I find that the Tribunal did not err in assuming jurisdiction to decide the Cryns’ claim.  It exercised its jurisdiction to determine a dispute founded in contract as to the Cryns’ right to use a cable, a fixture, which the Rasmussens had agreed to have on their land.

[17]     The application for judicial review is dismissed.

Costs

[18]     The Cryns’ counsel did not appear for the hearing because the Cryns decided the cost would be prohibitive.  Nevertheless, they are entitled to costs.  I fix these, tentatively, on a 2B basis.   Unless I receive submissions opposing 2B costs by

5:00 pm on 30 November 2017, costs will crystallise on that basis.

[19]     I record that I found the submissions of Mr Hollyman for the Interested Party to be useful and I appreciate his assistance.  However, I make no order of costs in

4      Telecom Auckland Ltd v Auckland City Council [1999] 1 NZLR 426 (CA) at 440.

5      I note that as the cable was laid after 1993, it is not governed by the “existing works” provisions in the Electricity Act 1992.

favour of the Interested Party because no issue was raised for determination relevant

to its interest.

Brewer J