Thornley v Ford - [2022] NZHC 667

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-398 [2022] NZHC 667

BETWEEN
PETER ERIC THORNLEY AND ROLIEN YOLANDA VAN HOUTEN

First Plaintiffs

JAMES RICHARD RUITERMAN

Second Plaintiff

AND

GRAEME REYNOLD FORD, NGAIRE DAWN FORD AND STEPHEN REYNOLD FORD AS TRUSTEES OF THE

FOOTBRIDGE TRUST

First Defendants

PAPA PUTAIAO LIMITED

Second Defendant

Hearing:
8 – 10 June 2021

Further submissions received 11 and 15 June 2021, 25 January

2022 and 8 February 2022

Appearances:

A E Simkiss and J S Hofer for Plaintiffs D G Hayes for Defendants

Judgment:

1 April 2022

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 1 April 2022 at 4.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

THORNLEY v FORD [2022] NZHC 667 [1 April 2022]

Introduction

[1] The plaintiffs are the registered proprietors of benefitted land under a registered easement for the supply of water to their land (“registered easement”).

[2] Prior to 26 January 2021, the first defendants, being Dr Graeme Ford and Mrs Ngaire Ford, and their son, Mr Stephen Ford, were the registered proprietors of the burdened land in their capacity as trustees of the Footbridge Family Trust (“trustees” and “FFT”).

[3] On 26 January 2021, the trustees transferred the land to the second defendant (“PPL”), of which Mr (Stephen) Ford is the sole director and shareholder.

[4] For reasons given below, I am not persuaded that anything particular turns on the transfer to PPL. Accordingly, I shall refer to “the defendants”, and only distinguish between the trustees and PPL as necessary.

[5] The registered easement provides that the pipes by which water is conveyed to the benefitted land, and an accompanying pumphouse, are to be located in an area marked A on DP 87873, to which I refer below (“area A”).

[6] However, by agreement reached in 1980 or thereabouts, and after the easement was registered in 1979, a substantial section, if not all, of the pipes was laid outside area A. It was also agreed that the pumphouse would be located outside area A.

[7] This agreement was reached between Dr Ford personally, who owned the burdened land at the relevant time, and a Mr Palmer, who was one of the then owners of what is now the first plaintiffs’ land.

[8] Despite this agreement, no variation to the registered easement was ever registered and no caveat was ever lodged against the title to the burdened land, whether by Mr Palmer or anyone else.

[9] In 2016, the trustees informed the plaintiffs that the pipes were not laid in, or wholly in, area A. More recently, the trustees, and now PPL, have advised they

propose to undertake works in the area where some or all of the offending section of the pipes is believed to be, and that the plaintiffs must re-lay those pipes or fresh pipes within area A if they wish to maintain their water supply.

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.

Keep reading for free

Create a free CaseChat account to read Thornley v Ford and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NZHC 667
Decision Date: 1 April 2022

CaseChat Overview and Summary

Thornley v Ford is a case between the plaintiffs, Peter Thornley and Rolien van Houten, and James Ruiterman, who are the registered proprietors of benefitted land under a registered easement for the supply of water to their land, and the defendants, Graeme Ford, Ngaire Ford, Stephen Ford, and Papa Putaiao Limited. The plaintiffs seek to have the registered easement rectified to reflect the existing location of the pipes and pumphouse, or alternatively, an order that there is an equitable easement consistent with the existing route of the pipes and pumphouse, but otherwise on the same terms as the registered easement. They also seek an order that the defendants are estopped from denying their right to water supply through the existing pipes and pumphouse. The defendants argue that the plaintiffs' claim to rectification cannot succeed as there is no evidence of any mistake by the parties to the registered easement. They also contend that if the agreement referred to created an equitable easement, it did not survive the transfer of the burdened land by Dr Ford to the trustees of the Footbridge Family Trust, and nor did it survive the trustees' recent transfer to PPL. The defendants also argue that they are not estopped as alleged.

The court found that the agreement between Dr Ford and Mr Palmer to vary the route of the pipes and location of the pumphouse gave rise to an equitable easement. However, the equitable easement was extinguished on Dr Ford's transfer of the burdened land, whether to Messrs Wiley and Mills in 1996 or subsequently. The court also found that the plaintiffs' claim for estoppel failed as they could not establish that their belief emanated in some way from the defendants.

The court dismissed the plaintiffs' claim and allowed them a period of three months to consider their position and communicate their intentions to the Court. The defendants, as the successful parties, are entitled to an award of costs and disbursements.

Orders