Sutherland v MacAlister HC Auckland CIV 2010 425 188
[2010] NZHC 1140
•1 July 2010
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CIV 2010 425 000188
BETWEEN TONY WILLIAM SUTHERLAND Applicant
ANDKAREN ELIZABETH MACALISTER AND WILLIAM RAMSAY MACALISTER
First Respondents
ANDDOLOVAT AGENCIES PTY LIMITED Second Respondent
ANDPENNY HOLDINGS LIMITED Third Respondent
ANDCORNER PTY LIMITED Fourth Respondent
ANDRAGHEB WASFY SIDHOM, MONA BISHOP AND AMBERLEY TRUSTEES LIMITED
Fifth Respondents
Hearing: 29 June 2010
Appearances: S N McKenzie for Applicant
S J Anderson for First Respondent
P G Wilson for Second Respondent No appearance for Third Respondent B A Boivin for Fourth Respondent
D Anderson for Fifth Respondent
R S Cunliffe for Queenstown Lakes District Council (as party served) Judgment: 1 July 2010 at 2pm
JUDGMENT OF ASSOCIATE JUDGE OSBORNE
as to jurisdiction under s 316 Property Law Act 2007
TONY WILLIAM SUTHERLAND V KAREN ELIZABETH MACALISTER AND WILLIAM RAMSAY MACALISTER AND ORS HC INV CIV 2010 425 000188 1 July 2010
Introduction
[1] The applicant commenced an application in this Court under s 316 Property Law Act 2007. The fifth respondents opposed the application partly for jurisdictional reasons. The fifth respondents said that an application under s 316 of the Act must be commenced in the District Court and that the High Court does not have originating jurisdiction.
[2] Mr Anderson for the fifth respondents, at the conference withdrew this ground of opposition. As the issue raised goes to jurisdiction it remains appropriate that the Court gives judgment on the issue.
Jurisdiction – applications under s 316 Property Law Act 2007 for order modifying or extinguishing easement or covenant.
[3] Section 316 of the Act states that the relevant person “may make an application to a court for an order under section 317 modifying or extinguishing that easement or covenant”.
[4] Section 317 of the Act provides that on such application “a court may, by order, modify or extinguish…”.
[5] Mr Anderson then refers to s 362 of the Act which deals with the jurisdiction of District Courts. Of specific relevance to s 317 orders is s 362(1)(b). The provision reads:
(1)Every District Court has jurisdiction to hear and determine the following matters, or to make the following orders:
(a) …
(b)An order under section 317 modifying or extinguishing an easement or covenant:
(c) …
[6] Mr Anderson notes that the authors of Hinde McMorland & Sim, LexisNexis loose leaf, at 17.031 state this:
The District Court has a discretionary jurisdiction to modify or to wholly or partially extinguish any easement or covenant upon being satisfied as to any one of a number of given grounds.
[7] The footnote in relation to the jurisdiction of the District Court states:
1.Property Law Act 2007, section 362(1)(b). An application under s 316 must be commenced in the District Court; the High Court does not have originating jurisdiction: Cabrach Holdings Ltd v Muschamp (High Court Wellington CP231/00, 14 February 2001, McGechan J). An exception exists where the application is made in the context of proceedings commenced by the dominant owner in the High Court to enforce an easement or freehold covenant and the defendant counter-claims under s 316 for an order for modification or extinguishment: Bonnar v Summerland Property Development Ltd (High Court Auckland CP134/1M02, 3 May 2002, Heath J).
[8] Ms McKenzie submits that the High Court has jurisdiction in relation to s 316 applications.
Discussion
[9] The two decisions referred to in the Hinde McMorland & Sim footnote (above at [7]) were both decided under the Property Law Act 1952. The importance of the particular wording of that statute is clear in the judgment of McGechan J in Cabrach Holdings Ltd v Muschamp. The power to extinguish easements then lay under s 126G of the 1952 Act. Section 126G empowered “a Court” to make the necessary orders. Under s 2 of the 1952 Act the term “Court” generally meant the High Court “unless the context otherwise requires”. In relation to ss 126A to 126G, however, the Act provided that, “unless the Court context otherwise requires” Court means a District Court.
[10] It was on the wording of the 1952 Act that McGechan J (in the Cabrach Holdings Ltd case) held that the District Court had exclusive jurisdiction in relation to s 126G orders.
[11] The Cabrach Holdings Ltd application was an originating application for extinguishment of easements under s 126G of the 1952 Act.
[12] In Bonnar v Summerland Property Development Limited the application for orders modifying or extinguishing a restrictive covenant arose as a counterclaim in a proceeding already issued (in which the plaintiff sought enforcement of the covenant).
[13] Section 126G(3) of the 1952 Act was applicable because it provided:
Where any proceedings are instituted to enforce an easement or a positive covenant or a restrictive covenant, or to enforce any rights arising out of a breach of any such covenant, any person against whom the proceedings are instituted may, in those proceedings, apply to the Court for an order under this section.
[14] Counsel submitted, and Heath J accepted, that the context of s 126G(3) required a construction of “Court” not limited “District Court” as defined in s 126 of the Act. Put another way, the s 126G(3) “counterclaim” procedure clearly envisaged an application to the very Court in which the enforcement application was brought. Hence the “exception” referred to in the Hinde McMorland & Sim footnote.
[15] In the Property Law Act 2007 Parliament has not adopted the same definition regime as applied under the 1952 Act.
[16] In the 2007 Act –
Section 4 provides:
Court, in relation to any matter, means the court before which the matter falls to be determined
[17] There is no special definition of “court” in Part 5 of the Act ( in which ss 316
– 317 are contained).
[18] Section 362(1)(b) says (see [5] above) that every District Court has jurisdiction to make s 317 orders.
[19] The fifth respondents’ ground of opposition asserted that s 362(1)(b) requires any application for a s 317 order to be commenced in the District Court. The
applicant’s case was that s 362 provides the District Court with jurisdiction and does not prevent the High Court from having jurisdiction.
[20] I agree with the applicant
[21] There is nothing in the provisions of the 2007 Act to indicate Parliament’s intention to oust the jurisdiction of the High Court. If one does not come to the 2007
Act with the historical background of the 1952 Act in mind, the limited definitions of “court” under that Act and the consequential rulings of this Court in Cabrach Holdings v Muschamp and Bonnar v Summerland Property Development Limited are not on point. Parliament has in the 2007 Act adopted a different framework and a different approach to definition. There is no evident connection between the approaches in the 1952 and 2007 Acts. The Court must construe these provisions in the 2007 Act afresh.
[22] The jurisdiction of superior Courts is dealt with in Laws of New Zealand, Reissue 1, Courts, (the author of the original title being Sir Michael Hardie Boys). At paragraph 8 it is stated:
8. Jurisdiction of superior Courts.
The jurisdiction of the Court of Appeal and of the Courts Martial Appeal Court are defined by the statutes that constitute them. The High Court is a Court of unlimited or general jurisdiction.
A superior Court of general jurisdiction has authority to determine its own jurisdiction. Prima facie no matter is deemed to be beyond the jurisdiction of such a Court unless it is expressly shown to be so. An objection to its jurisdiction must show that another Court has exclusive jurisdiction over the matter in issue. For the jurisdiction to be excluded, the statutory intention must be clearly expressed.
The case cited as authority for the final sentence of that passage is Henderson v The Wangapeka Gold-Dredging Co Ltd (1904) 23 NZLR 833 (S.C.). Amongst the English cases cited by Williams J was Jacobs v Brett (1875) LR 20 Eq.1, in which Sir George Jessel M.R. at 6 observed:
It is not to be assumed that the Legislature intends to destroy the jurisdiction of a Superior Court. You must find the intention not merely implied but necessarily implied.
[23] An ouster of the High Court’s jurisdiction is contained neither expressly nor by necessary implication in the 2007 Act. In my view, the authors of Brookers Land Law, on line, paragraph 9.19.01 have correctly summarised the position as to jurisdiction and procedure in the following passage:
(1) Jurisdiction and procedure
Under s 126 of the 1952 Act, the “Court” meant the District Court “unless the context otherwise requires”. Under s 316 Property Law Act 2007, adopting the definition of “Court” in s 4, refers to any Court before which the matter falls to be determined, so that either the District Court or the High Court will have jurisdiction depending upon the manner in which the issue arises.
[24] I adopt this passage as correctly summarising the law. There is concurrent jurisdiction in the High Court and District Court when the s 316 proceeding is commenced for the purpose of obtaining a s 317 order. On the other hand, pursuant to s 316(a) of the Act, where a proceeding has already been commenced in relation to an easement or covenant, then the s 316 application for a s 317 order may be made in that proceeding, in which event by necessity the s 316 application is filed in the Court in which the proceeding was commenced.
Conclusion
[25] This Court has jurisdiction in relation to the application made by the applicant under s 316 of the 2007 Act. There will be no order as to transfer. The
application is dismissed
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Solicitors:
Preston Russell, Invercargill
Ross Dowling Marquet Griffin, Dunedin
AWS Legal, Queenstown
Anderson Lloyd, QueenstownMacalisters, Invercargill.
Macalister Todd Phillips Bodkins, Queenstown
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