B J COLLINS AND ANOR V I A MIKITASOV AND ANOR HC AK CIV 2007-488-330

B J COLLINS AND ANOR V I A MIKITASOV AND ANOR HC AK CIV 2007-488-330

No arguable legal or equitable basis existed for extending the Lot 2 easement to 28 Binnie Street: the registered easement expressly benefits Lot 2 only, there was no specific agreement to create an easement for 28, implied grant principles do not produce a legal easement under the Land Transfer Act and no...

Source-derived case information.

Citation
openlaw-5208971c_020d_4085_931c_2b3f002f5d85.pdf
Parties
Plaintiff / Respondent: B J Collins; Defendant / Applicant: I A Mikitasov
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 April 2008
Procedural Posture
Declaratory Judgment and Land Transfer / Easement Dispute / Hearing on Summary Judgment and S145 a Caveat Removal
Outcome
Summary judgment for B J Collins; caveat ordered to lapse; declarations and injunction granted; costs awarded to Collins
Legal Topics
Right of Way, Easement, Implied Grant (wheeldon V Burrows), Caveat, Indefeasibility, Summary Judgment, Injunctions
Property Law Land Transfer Law Equity Civil Procedure Right of Way Easement Implied Grant (wheeldon V Burrows) Caveat +3 more

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Summary, issues, holding and outcome

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Parties

B J Collins

Plaintiff / Respondent

I A Mikitasov

Defendant / Applicant

Procedural Posture

Declaratory Judgment and Land Transfer / Easement Dispute / Hearing on Summary Judgment and S145 a Caveat Removal

Legal Issues

  1. 1 Whether the right of way appurtenant to Lot 2 also benefits 28 Binnie Street
  2. 2 Whether an easement could be impliedly granted or arise by Wheeldon v Burrows on the facts
  3. 3 Whether any equitable contract to create an easement existed enforceable against third parties

Ratio Decidendi

No arguable legal or equitable basis existed for extending the Lot 2 easement to 28 Binnie Street: the registered easement expressly benefits Lot 2 only, there was no specific agreement to create an easement for 28, implied grant principles do not produce a legal easement under the Land Transfer Act and no enforceable contract was proved; accordingly the caveat failed and summary judgment, declarations and injunction were granted to Collins.

Court Disposition

Summary judgment for B J Collins; caveat ordered to lapse; declarations and injunction granted; costs awarded to Collins

Orders

  • Declaration that easement instrument 6088561.14 does not create a right of way to 28 or 30 Binnie Street
  • Declaration that I A Mikitasov, his contractors and/or employees are not entitled to use the right of way created by easement instrument 6088561.14 to access 28 and/or 30 Binnie Street