Walshe v Macrae no.2

Case [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,…

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

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