Street v Fountaine

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

CIV-2014-435-6 [2016] NZHC 2343

UNDER

section 313 of the Property Law Act 2007

IN THE MATTER

of an application for relief concerning principally the land comprised in computer freehold registers WN40A/853 and WN564/201

BETWEEN

CHRISTOPHER JOHN STREET, PHILIP JOHN ENGLAND, MICHAEL JOHN STREET AND JOAN ISABELLA STREET

Plaintiffs

AND

REX ALISTAIR FOUNTAINE First Defendant

ASHBY DOWNS LIMITED Second Defendant

ANZ BANK NEW ZEALAND LIMITED Third Defendant

MARGARET ELIZABETH FOUNTAINE Fourth Defendant

Hearing:	29 February-4 March, 7-8 March 2016
Counsel:	R K Macdonald for Plaintiffs T G Stapleton QC for Defendants
Judgment:	3 October 2016

JUDGMENT OF CLIFFORD J

Introduction ..............................................................................................................[1] The law – equitable easements ................................................................................[7] Facts.........................................................................................................................[14] Analysis ...................................................................................................................[63] Agreement to grant easement ...............................................................................[63] Equitable estoppel ................................................................................................[85]

STREET v FOUNTAINE [2016] NZHC 2343 [3 October 2016]

Result ..................................................................................................................... [111] Final observations ................................................................................................ [112] Costs ...................................................................................................................... [116]

Introduction

[1]      This is a dispute about a private water scheme (the Lower Scheme) serving land adjacent to Ponatahi and Millars Roads in the eastern Wairarapa.

[2]      The Lower Scheme draws its water from the Ahiaruhe stream.  The Ahiaruhe rises on a property known as Aranui (owned by the second defendant Ashby Downs Limited (Ashby Downs)).1   The Lower Scheme’s infrastructure is principally located on adjoining properties: Waikaramu and Maungahuia owned by the first and fourth defendants, Rex and Margaret Fountaine (the Fountaines) individually or as trustees and The Downs, also owned by Ashby Downs.  Waikaramu, Maungahuia and The Downs are all located to the west of Millars Road.

[3]      One of the properties served by the Lower Scheme is owned by the plaintiffs, the trustees of Christopher and Joan Street’s family trust (the Street Trustees).  The Street property is on the eastern side of Millars Road.

[4]      The Street Trustees say that their rights under the Lower Scheme constitute an equitable easement over Aranui, Waikaramu and The Downs.2     They say that easement arises by agreement or equitable estoppel.   The Fountaines and Ashby Downs deny that.

[5]      By way of relief, the Street Trustees ask this Court to order that equitable easement be registered over Aranui, Waikaramu and The Downs.3    That easement would be effected under Part 5 of the Land Transfer Act 1952 and comprise the

rights and powers implied under s 90D(1) of the Land Transfer Act 1952, reg 10 of

1      Ashby Downs is the company through which the Ashby family have farmed for some time in the area.   Brothers Richard and Michael Ashby are the current farming generation.   It was their father, Mr J F Ashby, who was farming The Downs at the time the Scheme was established.

2      The Street property already has a benefit of an easement over Maungahuia relating to the

Scheme. That is why no claim is made in these proceedings for an easement over that property.

3      Whilst the Street Trustees’ principal concern was to obtain an easement over Waikaramu, they included Ashby Downs as second defendant to ensure, if they succeeded, that there were no…