Ross Donald Macrae v Anthony Patrick Walshe - [2014] NZSC 96

IN THE SUPREME COURT OF NEW ZEALAND

SC 16/2014
[2014] NZSC 96

BETWEEN

ROSS DONALD MACRAE AND LYNETTE GWENETH JOY MACRAE
Applicants

AND

ANTHONY PATRICK WALSHE
First Respondent

LESLEY ANN BERTRAM SMITH
Second Respondent

DOUGLAS SEYMOUR ALDERSLADE, RAYMOND JOHN BEECH AND CHRISTINE BEECH
Third Respondents

RICHARD HAMMOND AITKEN, ANGELA RUTH AITKEN, BRIAN HAMMOND AITKEN AND ROBERT JAMES AITKEN
Fourth Respondents

AUCKLAND COUNCIL
Fifth Respondent

Court:	Elias CJ, William Young and Arnold JJ
Counsel:	N R Campbell QC for Applicants G C Jenkin for First Respondent
Judgment:	22 July 2014

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B The applicants must pay the first respondent costs of $2,500.
____________________________________________________________________

REASONS

The applicants, the MacRaes, and the second respondent, Mrs Smith, owned neighbouring properties on Waiheke Island. In 1998, Mrs Smith obtained consent to subdivide her land into nine lots. As part of that process, she agreed to grant a right of way over two lots, lots 5 and 7, in favour of the MacRaes, thus allowing vehicle access to their six hectare property from a local road. Mrs Smith granted the right of way by a deed dated 25 August 1998, cl 5 of which provides:
The grants of right of way, telephone easements and energy supply easements shall be free of and appurtenant to each and every part of the dominant land save that the Easement of Right of Way shall only service one dwelling on the dominant land.

After the right of way was granted but before it was registered, Mrs Smith agreed to sell lot 5 and a share in lot 7 to the first respondent, Mr Walshe.

From 1999 the MacRaes used the right of way to access their property. The property had several buildings on it, including a two storey house known as Wild Bay Villa, a bach used as a sleep out, two sheds, an art studio and a building known as Windmill House. The MacRaes transported Windmill House onto the property after the grant of the right of way but before registration. It was used as an office and for storage and occasional visitor accommodation.
In August 2006, the MacRaes obtained consent to subdivide their property into two lots, one containing Windmill House and the bach, the other Wild Bay Villa. Despite the subdivision, the MacRaes continued to use the property as a whole, until they sold one lot to a third party in 2011. The titles for the two lots purported to give each lot the full benefit of the right of way easement that applied to the MacRae’s original unsubdivided property.
A dispute arose between the MacRaes and Mr Walshe concerning the extent of the rights granted by the easement, which resulted in the present proceedings. In case they were wrong on the interpretation issues, the MacRaes applied under s 316 of the Property Law Act 2007 for orders which had the effect of enlarging the easement so that it would operate to the benefit of…

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.

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Details

Case: [2014] NZSC 96
Decision Date: 22 July 2014

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an appeal by Ross Donald Macrae and Lynette Gweneth Joy Macrae, who sought leave to appeal against the decision of the Court of Appeal. The Court of Appeal had upheld the High Court's decision that Windmill House was a dwelling within the meaning of the right of way easement and that the easement allowed access only to a single dwelling and for any naturally related or ancillary purposes. The Court of Appeal had also modified the easement to operate to the benefit of both of the lots into which the MacRaes had subdivided their property, and had fixed compensation. The MacRaes sought leave to appeal on several questions relating to the approach to the interpretation of the right of way easement, the interpretation of “dwelling” and the award of costs in the High Court and Court of Appeal. If leave to appeal was granted, Mr Walshe sought leave to cross-appeal in relation to the quantum of compensation.

The legal issues before the Supreme Court were whether the MacRaes' application for leave to appeal should be granted, and whether Mr Walshe's application for leave to cross-appeal should be granted. The Court considered whether the issues raised by the MacRaes and Mr Walshe were of general or public importance, or whether they were issues relating to the application of a particular bespoke easement. The Court also considered whether there was a real risk of a substantial miscarriage of justice if leave was not granted.

The Supreme Court held that it was not necessary in the interests of justice that it hear and determine the appeal. The Court held that the issues raised by the MacRaes and Mr Walshe were not issues of general or public importance, but rather were issues relating to the application of a particular bespoke easement. The Court also held that there was no real risk of a substantial miscarriage of justice if leave was not granted. The application for leave to appeal was dismissed, and the applicants were ordered to pay the first respondent costs of $2,500. Mr Walshe's application for leave to cross-appeal was not considered by the Court.

In summary, the Supreme Court dismissed the MacRaes' application for leave to appeal and ordered them to pay the first respondent costs of $2,500. The Court held that the issues raised by the MacRaes and Mr Walshe were not issues of general or public importance, but rather were issues relating to the application of a particular bespoke easement. The Court also held that there was no real risk of a substantial miscarriage of justice if leave was not granted.

Orders