Stoke Valley Holdings Limited - [2020] NZHC 430

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2019-442-77

[2020] NZHC 430

IN THE MATTER

AND

of Parts 7 and 19 of the High Court Rules 2016 and ss 316 and 317 of the Property

Law Act 2007

IN THE MATTER

of an application by STOKE VALLEY HOLDINGS LIMITED and SOLITAIRE

INVESTMENTS LIMITED for an order extinguishing easements

BETWEEN

STOKE VALLEY HOLDINGS LIMITED AND SOLITAIRE INVESTMENTS

LIMITED

Applicants

Teleconference: 7 February 2020

Counsel:

A M Halloran for Applicants

Judgment:

6 March 2020

JUDGMENT OF GRICE J

(Extinguishing easements)

[1] This is a matter due to be called at a case management conference on 20 March 2020. However, the applicant has asked the matter be dealt with earlier than that due to pressures in finalising the relevant subdivision.

[2]This originating application in so far as is relevant seeks orders:

(a)extinguishing three easements that are registered over the titles of land owned by the two applicants namely Stoke Valley Holdings Limited

APPLICATION BY STOKE VALLEY HOLDINGS LIMITED AND SOLITAIRE INVESTMENTS LIMITED [2020] NZHC 430 [6 March 2020]

(Stoke Valley) and Solitaire Investments Limited (Solitaire) pursuant to ss 316 and 317 of the PLA; and

(b)Directing the Registrar-General of Lands to extinguish wholly the easements granted by this judgment.

[3] These orders are sought as the land is in the process of being subdivided and the easements that were originally registered over the “parent” land are no longer required for the purpose of the easements. They prevent the vesting of land for road or reserve purposes required as a result of subdivision.

[4] The applicants have filed affidavit evidence in support of the application for extinguishing the easement, including from a surveyor and a lawyer expert who has been involved in the subdivision. The effect of the evidence is that the easements in question are now practically redundant and they prevent the progress of subdivision consents which have been granted.

[5]The affidavits in support of the application are from:

(a)Mr Stuart Andrew Calder – for Stoke Valley Holdings Ltd;

(b)Mr Paul Le Gros – for Solitaire Investments Ltd;

(c)Mr Steven Mark Reinier Odenton a Surveyor – a surveyor familiar with the subdivision;

(d)Ms Sian Rhiannon Holden – a solicitor experienced in subdivision matters.

[6] Sections 316 and 317 of the Property Law Act allow this Court to make an order extinguishing easements. In this case that procedure is considered the only available option to the applicants as there are a number of titles that now how hold the benefit of the easements in question and the evidence is that there would be substantial difficulty in obtaining consent from the relevant parties. Therefore, that course impractical.

[7] The Court’s permission is sought without notice to bring this application as an originating application pursuant to r 19.5 of the High Court Rules 2016.

[8] I granted leave for the application to be brought by way of originating application and directed that service of the application be…

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: [2020] NZHC 430
Decision Date: 6 March 2020

CaseChat Overview and Summary

Stoke Valley Holdings Limited and Solitaire Investments Limited, two companies owning land in Nelson, New Zealand, sought to extinguish three easements registered over their titles. The easements, originally intended to serve the land's needs, were now redundant due to the planned subdivision of the land. The applicants sought orders to extinguish the easements under sections 316 and 317 of the Property Law Act 2007 and direct the Registrar-General of Lands to extinguish them. The court was required to determine if the easements could be extinguished and if doing so would cause any detriment to the parties holding the benefit of the easements.

The court considered the applications and noted that extinguishing the easements was the most practical and cost-effective method to allow the new titles to be issued, as the agreements for sale and purchase were dependent on the issue of the titles. The court was satisfied that no person would be detrimentally affected by the extinguishment of the easements, and the continuation of the easements would impede the reasonable use of the land in a different way or to a different extent than that which could reasonably have been foreseen by the original parties to the easements at the time of their creation.

The court granted the orders extinguishing the three easements and directed the Registrar-General of Lands to extinguish the easements granted by this judgment. The matter was removed from the list for 20 March 2020 as it had been finally determined.

Orders