Walshe v Macrae no.2 - [2012] NZHC 3054

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2009-404-008259 [2012] NZHC 3054

BETWEEN ANTHONY PATRICK WALSHE Plaintiff

ANDROSS DONALD MACRAE AND LYNETTE GWYNETH JOY COLLINS Defendants

ANDLESLEY ANNE BERTRAM-SMITH First Counter-Claim Defendant

ANDDOUGLAS SEYMOUR ALDERSLADE, RAYMOND JOHN BEECH AND CHRISTINE BEECH
Second Counter-Claim Defendants

ANDRICHARD HAMMOND AITKEN, ANGELA RUTH AITKEN, BRIAN HAMMOND AITKEN AND ROBERT JAMES AITKEN
Third Counter-Claim Defendants

AND AUCKLAND COUNCIL
Fourth Counter-Claim Defendant

Hearing: On the papers

Counsel: G C Jenkin for Plaintiff
N R Campbell for Defendants

Judgment: 16 November 2012

JUDGMENT (No 2) OF KEANE J

This judgment was delivered by on 16 November 2012 at 12.30pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:

Solicitors:
Bruce Dell Law, Auckland for Plaintiff
McVeagh Fleming, Auckland for Defendants

ANTHONY PATRICK WALSHE V ROSS DONALD MACRAE AND LYNETTE GWYNETH JOY COLLINS HC AK CIV 2009-404-008259 [16 November 2012]

[1] In my decision, dated 28 February 2012, I held that Mr and Mrs Macrae were entitled to the benefit of their existing right of way over the land of Anthony Walshe in Church Bay, Waiheke Island, only to service the dwelling on one of the two lots into which they had subdivided their land, even though they had succeeded in having that easement registered against both their ensuing titles.

[2] I granted, in principle, the Macraes' consequent application to modify their easement to benefit both their titles, solely on the basis that I was satisfied that Mr Walshe would not be 'substantially injured'. I held that he was entitled to compensation. Before entering judgment formally I invited submissions on three issues, apart from the question of costs.

[3] To establish finally Mr Walshe's right to be compensated for the increase in value of one of the Macraes' two lots, lot one, I asked whether, if at all, they had a right of vehicle access to that lot along the foreshore of Te Huruhi Bay from Blackpool Beach, some 600 metres away. Secondly, I asked whether and to what extent Mr Walshe was entitled to be compensated, quite distinctly, for cost and inconvenience; a right, I said, that had been held to extend beyond any ordinary award of costs, including indemnity costs. Thirdly, I asked when the Macraes should pay to Mr Walshe the compensation and costs to which he is entitled and should seal the right of way.

[4] As to that last issue, I wished to know what date to fix to assure Mr Walshe of payment and completed sealing. Should that, I asked, be the date the modifying order took effect, ratifying the existing state of the Macraes' titles, or should it be linked, for instance, to when the Macraes sold one or both of their properties? A related issue was to what standard the driveway was to be sealed and how that was to be assured and paid for.

[5] Since my decision the Macraes have, consistently with the terms of the interim injunction still in place,…

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.

Continue reading Walshe v Macrae no.2

Details

AGLC: Walshe v Macrae no.2 [2012] NZHC 3054
Case: [2012] NZHC 3054
Decision Date: 16 November 2012

CaseChat Overview and Summary

In the case of Walshe v Macrae no.2, the High Court of New Zealand was asked to determine whether the Macrae's had a right of vehicle access to their property along the foreshore of Te Huruhi Bay and if so, whether they were entitled to compensation for any increase in value to their property. The court also had to decide whether Mr Walshe was entitled to compensation for the cost and inconvenience of the case and whether the Macrae's were entitled to an offsetting award of costs. The court found that the Macrae's did not have a prescriptive right of vehicle access along the foreshore and therefore, any increase in value to their property was not due to that right. However, the court did find that the Macrae's had a right of vehicle access across the esplanade strip to Te Huruhi Bay and that the public generally had a right of vehicle access along the foreshore. As a result, the court found that Mr Walshe was entitled to be compensated for half the increase in value to the Macrae's property. The court also found that Mr Walshe was entitled to compensation for the cost and inconvenience of the case but not for any loss of income he suffered. Finally, the court found that the Macrae's were not entitled to an offsetting award of costs.

Orders