ROSS DONALD MACRAE AND LYNETTE GWENETH JOY MACRAE v ANTHONY PATRICK WALSHE [2014] NZSC 96

ROSS DONALD MACRAE AND LYNETTE GWENETH JOY MACRAE v ANTHONY PATRICK WALSHE [2014] NZSC 96

Leave to appeal was refused because the issues were specific to the interpretation and application of a bespoke easement and did not raise questions of general or public importance nor a real risk of substantial miscarriage of justice; on the facts a modification under s316 was required to allow the easement to...

Source-derived case information.

Citation
[2014] NZSC 96
Parties
Applicants: Ross Donald MacRae and Lynette Gweneth Joy MacRae; First Respondent: Anthony Patrick Walshe; Second Respondent: Lesley Ann Bertram Smith; Third Respondents: Douglas Seymour Alderslade, Raymond John Beech and Christine Beech; Fourth Respondents: Richard Hammond Aitken, Angela Ruth Aitken, Brian Hammond Aitken and Robert James Aitken; Fifth Respondent: Auckland Council
Court
Supreme Court
Jurisdiction
New Zealand
Judgment Date
22 July 2014
Procedural Posture
Civil Appeal (property/easement) / Application for Leave to Appeal to the Supreme Court
Outcome
Application for leave to appeal dismissed
Legal Topics
Right of Way, Interpretation of Easement, Definition of Dwelling, Modification of Easements Under S316 Property Law Act 2007, Compensation for Easement Modification
Property Law Easements Civil Procedure Costs Right of Way Interpretation of Easement Definition of Dwelling Modification of Easements Under S316 Property Law Act 2007 +1 more

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Parties

Ross Donald MacRae and Lynette Gweneth Joy MacRae

Applicants

Anthony Patrick Walshe

First Respondent

Lesley Ann Bertram Smith

Second Respondent

Douglas Seymour Alderslade, Raymond John Beech and Christine Beech

Third Respondents

Richard Hammond Aitken, Angela Ruth Aitken, Brian Hammond Aitken and Robert James Aitken

Fourth Respondents

Auckland Council

Fifth Respondent

Procedural Posture

Civil Appeal (property/easement) / Application for Leave to Appeal to the Supreme Court

Legal Issues

  1. 1 Whether the right of way easement granted in 1998 benefits more than one dwelling or only a single dwelling
  2. 2 Whether Windmill House constitutes a "dwelling" within the meaning of the easement
  3. 3 Whether subdivision of the dominant tenement requires modification of the easement under s316 Property Law Act 2007

Ratio Decidendi

Leave to appeal was refused because the issues were specific to the interpretation and application of a bespoke easement and did not raise questions of general or public importance nor a real risk of substantial miscarriage of justice; on the facts a modification under s316 was required to allow the easement to benefit both subdivided lots and the contested interpretation that Windmill House was a dwelling affected the quantum of compensation but did not justify Supreme Court intervention.

Court Disposition

Application for leave to appeal dismissed

Orders

  • Application for leave to appeal dismissed
  • Applicants must pay the first respondent costs of $2,500