Ruby & Rata Limited v Reed Trustee 2018 Limited - [2023] NZHC 3462

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-724

[2023] NZHC 3462

UNDER Section 313 Property Law Act 2007

BETWEEN

RUBY & RATA LIMITED

Plaintiff

AND

REED TRUSTEE 2018 LIMITED and

ANTHONY PRIVETT REED (as trustees of the Eagle Trust)

Defendants

Hearing: 6-7 November 2023

Appearances:

R O Parmenter for Plaintiff

J W Maassen and B D Mead for Defendants

Judgment:

30 November 2023

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 30 November 2023 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Graham & Co, Auckland Langford Law, Wellington

RUBY & RATA LIMITED v REED TRUSTEE 2018 LIMITED [2023] NZHC 3462 [30 November 2023]

[1] The parties are neighbouring landowners, in dispute about a right of way (ROW) involving two rural blocks of land in Pukekohe, Auckland:

(a)The plaintiff, Ruby & Rata Ltd (Ruby), owns the land at 87 Ruebe Road (Lot 1, DP 443412), the land benefiting from the ROW easement. The plaintiff took title to 87A Ruebe Road on 7 May 2021.

(b)The defendants are trustees of the Eagle Trust, which own the burdened land at 87A Ruebe Road (Lot 2, DP 443412). The trustees are Reed Trustee 2018 Ltd and Anthony Privett Reed. They took title to 87 Ruebe Road on 15 October 2021.

[2] The full length of the ROW easement from the road to the other end is approximately 176 metres. There is already one accessway from the shared driveway onto Ruby’s property, at location “X” on the annotated photo below (point X). The length of the easement from the road to point X is 55.5 metres. The photo shows a perspective from east at the bottom of the picture, to west at the top where the ROW driveway joins Ruebe Road. In the photo, Ruby’s land is on the left (to the south), Eagle Trust’s land is to the right (to the north). Eagle Trust’s title includes the ROW, which is shown bounded in red.

[3] This dispute is about whether Ruby is entitled to create another gated entry point to Ruby’s property further along the shared driveway at a new point marked “Z” on the above annotated photo (point Z). The length from the road to point Z is
130.1 metres. Creating a gated entry at point Z would incidentally include removing a pūriri tree at the location marked “T”. Ruby wants to form new vehicular carriageways from the shared driveway to its own land at points X and Z. The intended works are described in the amended statement of claim (the intended works):

(a)Remove the tree marked T, which, unreasonably, blocks Ruby’s intended access at point Z.

(b)Remove part of fence (posts and rails) as required but of approximately 12 metres width at each of points X and Z.

(c)Form carriageways from the existing formed and sealed driveway to the boundary:

(i)for point Z, almost in a straight line up 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.

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Details

Case: [2023] NZHC 3462
Decision Date: 30 November 2023

CaseChat Overview and Summary

The case of Ruby & Rata Limited v Reed Trustee 2018 Limited and Anthony Privett Reed involved a dispute between neighbouring landowners regarding a right of way (ROW) easement on two rural blocks of land in Pukekohe, Auckland. Ruby & Rata Limited, the plaintiff, sought to create another gated entry point to its property further along the shared driveway. The defendants, Reed Trustee 2018 Limited and Anthony Privett Reed, opposed the changes, arguing that an accessway at the existing point was sufficient for Ruby’s enjoyment of its land under the ROW. The plaintiff claimed that the proposed changes were reasonable for its present farming operations, while the defendants argued that the application was a backdoor implementation of future needs for a consented subdivision and a commercial helicopter business. The court had to decide whether the plaintiff was entitled to create the new accessway and whether the defendants' counterclaim to modify the existing easement was valid. The court found that the plaintiff was entitled to carry out the intended works for its current farming needs, and rejected the defendants' counterclaim, concluding that there had been no substantial changes to the uses of the burdened or benefiting land that would lead to a modification of the ROW terms. The court awarded $15,000 in general damages to the plaintiff for the adverse effects on its farming operation but declined to award exemplary damages, finding that the defendants genuinely believed in their arguments.

Orders