Squally Cove Forestry Partnership v Wagg - [2013] NZCA 463

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA747/2012 [2013] NZCA 463

BETWEEN
SQUALLY COVE FORESTRY

PARTNERSHIP Appellant

AND

ASHLEY JOHN WAGG

DONALD MURRAY MUIR, MURIEL CHRISTINE MUIR AND GUY ROBERT MORLEY MORTLOCK

JOHN MATTHEW ZWART, TERRESSA LEE ZWART AND FLETCHER VAUTIER MOORE TRUSTEES LIMITED

SUSAN DAWN REWCASTLE, ROSS HANNAY MCKECHNIE AND HUNTER RALFE TRUSTEES LIMITED

CLINTON JOHN MCINNES AND PHILLIPA JANE MCINNES

ROBYN SHIRLEY PRICE, BRODIE JANE PLUM AND REBECCA ANNE PLUM

NIGEL BRYANT, ELIZABETH HANNAH BRYANT AND LINDA GAIL MILLER

VIN MORRIS PARKINS, GRANT TREVOR PARKINS AND REECE DARREN PARKINS

DUANE ANDREW WHITING AND AMANDA JOANNE WHITING

BRUCE DOUGLAS HOLLYMAN AND CAROL JOY HOLLYMAN

JEREMY MICHAEL FOLEY First Respondents

SQUALLY COVE FORESTRY PARTNERSHIP v WAGG & ORS CA747/2013 [2013] NZCA 463 [4 October
2013]

ANDMARLBOROUGH DISTRICT COUNCIL
Second Respondent

Hearing: 17 and 18 July 2013

Court:

Ellen France, White and French JJ

Counsel:

L J Taylor QC and G M Richards for Appellant
J M Fitchett and R D J Fitchett for First Respondents
P J Radich for Second Respondent (attendance excused)

Judgment:

4 October 2013 at 2.30 pm

JUDGMENT OF THE COURT

A The appeal is allowed and the order made in the High Court is quashed.

BThe first respondents must pay the appellant costs for a standard appeal on a band B basis and usual disbursements. Second counsel is allowed.

CCosts in the High Court should be determined in accordance with this judgment. If an award of costs has been made in the High Court, we set it aside so that costs can be redetermined in accordance with this judgment.

D The first respondents’ liability for costs is on a joint and several basis.

REASONS OF THE COURT

(Given by French J)

Introduction

[1] The first respondents all own properties in or near Wairangi Bay in the Marlborough Sounds. They claim their properties are landlocked. In 2010 they applied to the High Court for an order under s 327 of the Property Law Act 2007 granting them access over a private road situated on land belonging to the appellant, Squally Cove Forestry Partnership (Squally Cove).

[2] The case was heard by Mallon J. The Judge found that with one exception1 the properties were landlocked and made an order on various terms granting access to each of the landlocked respondents as sought.2

[3] Squally Cove now appeals that decision. [4] The key issues raised by the appeal are:
(a) Was the Judge correct to find that the properties were landlocked in circumstances where the first respondents had chosen not to accept access on an alternative road on terms which were reasonable or could have been made reasonable by the Court?

(b)Was the Judge right to find that the terms of the offer of alternative access were unreasonable?

(c) Did the Judge, in the exercise of her discretion under s 328, place excessive weight on past usage of the road?

(d) Did the Judge err in declining…

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: [2013] NZCA 463
Decision Date: 4 October 2013 at 2.30 pm

CaseChat Overview and Summary

Squally Cove Forestry Partnership (Squally Cove) appeals against a decision of Mallon J that granted access over its land to various neighbouring property owners (the respondents) pursuant to s 327 of the Property Law Act 2007. The respondents had claimed that their properties were landlocked. Squally Cove had offered the respondents a right of way over an alternative road (the yellow road) on certain terms. The Judge found the properties were landlocked and made an order granting access to the respondents. Squally Cove argues the Judge should have found that the terms of the offer of alternative access were reasonable and that the Judge should not have granted access because the respondents could not use the offered access due to the lack of reasonable access to a connecting road (the blue road). The appeal was heard by Ellen France, White and French JJ. The Court allowed the appeal and quashed the order made by the Judge. The Court found that the properties were landlocked because there was no reasonable access to them. The offer of alternative access was on reasonable terms. However, the Court found the Judge was wrong to grant a right of way over the red road because that did not grant the respondents reasonable access. The Court declined to make any order in favour of the respondents. The Court ordered that the respondents pay Squally Cove’s costs on a band B basis on a joint and several basis.

Orders