Re Marriner Property Ltd - [2020] NZHC 1747

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000131

[2020] NZHC 1747

UNDER Sections 316 and 317 of the Property Law Act 2007

IN THE MATTER OF

an application by MARRINER PROPERTY LIMITED for orders extinguishing an easement pursuant to ss 317 and 317 of the Property Law Act 2007

On the Papers

Counsel:

K M Paterson & O D Peers for the Applicant

Judgment:

17 July 2020

JUDGMENT OF DOOGUE J

This judgment was delivered by Justice Doogue on 17 July 2020 at 4.45 pm
pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

Solicitors:
Buddle Finlay, Christchurch

RE MARRINER PROPERTY LIMITED [2020] NZHC 1747 [17 July 2020]

Introduction

[1] Marriner Property Limited (MPL) is the equitable owner of 11 Marriner Street, Sumner, Christchurch (the property), being the nominated purchaser under an unconditional agreement for sale and purchase between Peterborough 15 Limited and the majority of the owners of the unit plan development on the property.

[2] MPL plans to develop the property by cancelling the existing unit plan and subdividing the property into five fee-simple lots.

[3] The application is brought because the property is subject to a right of way easement. MPL seeks the extinguishment of the easement.

[4] All relevant parties have been served, public advertisement has taken place and no party has expressed an interest in joining the proceeding or opposing the orders sought. This matter proceeds by way of formal proof.

Background

[5] The property comprises an area of land of approximately 4,186 m2 contained in and described as Lot 1 DP 76630. The property is the subject of a unit plan development created in 1998, under the Unit Titles Act 1972.

[6] The unit title development was known as the Cave Rock apartments, a development which comprised 50 units. The Cave Rock units were damaged in the Canterbury earthquake sequence. Some of the units were demolished after the earthquakes and some remain standing today, albeit damaged and unoccupied.

[7] Peterborough 15 Limited entered into an agreement for sale and purchase with the majority of the owners of the Cave Rock units and the Body Corporate to purchase the property on 15 March 2019 (the agreement). Peterborough 15 Limited has nominated MPL to complete the purchase of the property under the agreement.

[8] The agreement became unconditional on 20 December 2019, after the High Court released its decision in White v VXJ Holdings Ltd.1 This proceeding involved a successful application by the majority of the Cave Rock unit owners, seeking to require the remaining unit owners to sell their units pursuant to the agreement.

[9] The preparatory subdivision work for MPL’s plans to develop the property is well under way. MPL have been working with consultants, who prepared the subdivision consent application that was lodged with the Christchurch City Council on or about 7 February 2020. They are now in negotiations with the Council regarding the consent application, and the…

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 Re Marriner Property Ltd

Details

AGLC: Re Marriner Property Ltd [2020] NZHC 1747
Case: [2020] NZHC 1747
Decision Date: 17 July 2020

CaseChat Overview and Summary

Marriner Property Limited (MPL) applied to the High Court of New Zealand for the extinguishment of a right of way easement over its property located at 11 Marriner Street, Sumner, Christchurch. The easement, which had not been used for decades, impeded the property's development plans. The court was required to decide whether the easement should be extinguished under s 317 of the Property Law Act 2007, considering the changes in the property's use, the character of the neighbourhood, and whether the easement's continuation would impede the reasonable use of the land. The court also had to determine whether MPL could bring the application via an originating application in the High Court.

The court found that the easement had not been used since the 1970s and was rendered redundant by the construction of the Cave Rock apartments over it. The easement's continued existence impeded the property's reasonable use, as it could no longer be used for its intended purpose. The court considered the changes in the property's use, the character of the neighbourhood, and the lack of any current need for the easement. The court concluded that extinguishing the easement would not substantially injure any person entitled to it, as the original beneficiaries were deceased or no longer existed. Therefore, the court granted MPL's application to extinguish the easement.

The court granted MPL leave to commence the proceeding by way of originating application under part 19 of the High Court Rules 2016. The court also extinguished the right of way in gross created by transfer 198838 over the specified land.

Orders