| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA539/2016 [2018] NZCA 55 |
| BETWEEN | CHRISTOPHER JOHN STREET, PHILIP JOHN ENGLAND, MICHAEL JOHN STREET AND JOAN ISABELLA STREET |
| AND | REX ALISTAIR FOUNTAINE ASHBY DOWNS LIMITED ANZ BANK NEW ZEALAND LIMITED |
| CA617/2016 | |
| BETWEEN | REX ALISTAIR FOUNTAINE AND ASHBY DOWNS LIMITED |
| AND | CHRISTOPHER JOHN STREET, PHILIP JOHN ENGLAND, MICHAEL JOHN STREET AND JOAN ISABELLA STREET |
| Hearing: | 8 ,9 and 10 August 2017 (further submissions 3, 10 October and 4 December 2017) |
Court: | French, Winkelmann and Gilbert JJ |
Counsel: | D J Goddard QC and R K Macdonald for Appellants |
Judgment: | 19 March 2018 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal against the substantive judgment of Clifford J is allowed.
BThe Street Trustees are entitled to orders as set out in [154]–[155].
CThe costs orders made in the High Court are quashed.
DCosts in the High Court are fixed on the basis that the Street Trustees are entitled to costs calculated on a band 2B basis, together with disbursements to be fixed by the Registrar of the High Court.
EThe respondents must pay the appellants costs for a complex appeal on a band A basis and usual disbursements. We certify for two counsel.
____________________________________________________________________
REASONS OF THE COURT
(Given by Winkelmann J)
Table of Contents
| Para No. | ||
| Introduction | [1] | |
| The issues on appeal | [10] | |
| Factual background | ||
| The creation of the scheme | [14] | |
| Easement over Maungahuia | [26] | |
| The upgrade of the scheme in 1993‑1994 | [28] | |
| Tensions | [30] | |
| High Court judgment | [33] | |
| First issue: did the Judge err in finding there was no enforceable agreement to grant easements in relation to scheme infrastructure located on Waikaramu and The Downs? | ||
| Legal principles: easements | [43] | |
| Did Mr John Fountaine agree to grant an easement over Waikaramu in 1971–1972 and, if so, is that agreement enforceable? | [53] | |
| (a) Documentary record | [55] | |
| (b) Conduct of the parties | [76] | |
| (c) Oral evidence | [83] | |
| (d) Conclusion on whether Mr John Fountaine agreed to grant an easement over Waikaramu in 1971 | [89] | |
| (e) Was there sufficient consideration? | [90] | |
| (f) Were there sufficient acts of part performance? | [92] | |
| (g) Did Mr John Fountaine have sufficient interest in the land to grant an easement? | [97] | |
| Did Mr James Ashby agree to grant an easement over The Downs in 1971–1972? | ||
| (a) The basis of the claim | [101] | |
| (b) Analysis | [105] | |
| Were easements agreed to in respect of the scheme as modified in 1993–1994? | ||
| (a) The basis of the claim | [110] | |
| (b) Analysis | [117] | |
| Second issue: did the Judge err in finding that the respondents were not estopped from denying the existence of such easements? | ||
| Relevant principles | [133] | |
| The issues | [135] | |
| Third issue: if there is an equitable easement or easements, what relief if any is appropriate to give effect to these easements? | ||
| Submissions | [147] | |
| Orders | [154] | |
| Fourth issue: if there is no equitable easement, what other equitable rights and obligations exist in relation to scheme infrastructure, and what relief is appropriate? | ||
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- [2018] NZCA 55
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