Watters v Mirkin - [2025] NZHC 2475

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2025-442-019

[2025] NZHC 2475

UNDER sections 326–328 of the Property Law Act 2007

BETWEEN

CARL JOHN ARNOLDUS WATTERS AND LEAH HELEN GIBSON

Plaintiffs

AND

MARK DAVID MIRKIN

First Defendant

AND

ARTHUR BRUCE WIN and DEBRA MARGARET WIN

Second Defendants

Hearing: 11 August 2025

Appearances:

S J Zindel and M A Gauler for Plaintiffs G J Praat for First Defendant

M J Logan for Second Defendant

Judgment:

29 August 2025

JUDGMENT OF GRICE J

Introduction

[1] The plaintiffs seek an easement under s 328 of the Property Law Act 2007 (the Act) over the farmland owned by the first defendant and second defendants. The plaintiffs’ land is landlocked.

[2] The easement is sought over a gravelled accessway of approximately 5 m in width (the farm track). The farm track runs, primarily, over the first defendant’s property. It also crosses over a portion of the second defendants’ property. The farm

WATTERS v MIRKIN [2025] NZHC 2475 [29 August 2025]

track has been used by the plaintiffs for pedestrian and vehicular access to their house which is a converted barn. Tensions developed between the plaintiffs and Mr Mirkin, the first defendant over the use of the farm track. This cumulated in an urgent application to this Court and interim orders granting temporary access to the plaintiffs over the farm track.

Interim position

[3] The background to the claim is set out in the interim judgment granting temporary access over the farm track:1

[2] The plaintiffs’ rural property on Win Valley Road in Dovedale, Nelson is landlocked in practical terms. There is provision for legal access to the property through a paper road. However, the road has never been formed and the route over which it travels is essentially unusable without considerable expenditure. The plaintiffs, and the previous owners of their property, have for many years accessed their property through a flat and gravelled accessway from Win Valley Road, of about one kilometre in length, which runs over the properties of the first and second defendants.

[3] The first defendant believes that the plaintiffs’ use of their land has intensified in more recent times, placing increased demands on the access route through his land. He wanted the terms of access over his land to be formalised. He provided a draft licensing access agreement to the plaintiffs in May 2024. Its terms were not agreed. An updated agreement was provided by the first defendant to the plaintiffs later in the year. It was signed by the plaintiffs on 20 December 2024 – they say on a without prejudice basis to enable them access temporarily against the threat by the first defendant of the issue of a trespass notice. It was designed, the plaintiffs say, to provide a temporary solution over the summer break while a more permanent solution could be negotiated, or proceedings filed. However, disharmony continued. The first defendant says that the plaintiffs failed to comply with…

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 Watters v Mirkin

Details

AGLC: Watters v Mirkin [2025] NZHC 2475
Case: [2025] NZHC 2475
Decision Date: 29 August 2025

CaseChat Overview and Summary

The plaintiffs, Carl John Arnoldus Watters and Leah Helen Gibson, sought an easement under s 328 of the Property Law Act 2007 over the farmland owned by Mark David Mirkin (first defendant) and Arthur Bruce Win and Debra Margaret Win (second defendants). The plaintiffs' property, located in Dovedale, Nelson, is landlocked and has been accessed via a gravelled accessway (the farm track) running over the defendants' properties. Tensions arose between the parties regarding the use of the farm track, leading to an interim order granting temporary access. The plaintiffs now sought a permanent easement.

The court was required to determine if the plaintiffs' property was landlocked, whether to grant reasonable access over the farm track, and if so, what conditions should be imposed. The court found the plaintiffs' property was landlocked as there was no reasonable access other than over the farm track. The court exercised its discretion to grant reasonable access by way of an easement on conditions. The court considered factors such as the nature and quality of access, the circumstances under which the land became landlocked, the conduct of the parties, and potential hardship. The court ordered the plaintiffs to pay compensation, finance the capital works, and meet ongoing repairs and maintenance costs. The court also specified the nature of the fence and the arrangements for overseeing the construction of the fence.

The court granted reasonable access over the farm track by way of an easement, subject to conditions. The plaintiffs' land was landlocked. The court ordered the plaintiffs to pay compensation to the defendants, finance the capital works, and meet ongoing repairs and maintenance costs. The court specified the nature of the fence and the arrangements for overseeing the construction of the fence. If the parties could not reach agreement on the outstanding issues, the matter would be set down for a further hearing. Costs were reserved for further submission following the completion of final orders.

Orders