New Zealand Case Law: Decisions & Judgments

Topic

Equitable easement

Legal area

Court

5 Oct 2023

LEWIS v HAMILTON COSMOPOLITAN CLUB INCORPORATED [2023] NZCA 484

Citation

[2023] NZCA 484
Court

Court of Appeal

Leave to bring a second appeal was declined because the applicant either failed to pursue available procedural options in the High Court (choosing not to seek an adjournment to advance additional arguments), sought to raise new factual and evidentiary issues (equitable easement) that are the subject of separate proceedings and require evidence, and the proposed grounds did not present the rare, serious arguable questions of law or public importance necessary to justify a second appeal.
26 May 2023

THORNLEY v FORD [2023] NZHC 1257

Citation

[2023] NZHC 1257
Court

High Court

Plaintiffs' substantive claims were dismissed; therefore plaintiffs must pay the first defendants' costs on a 2B scale subject to specific disallowances and a 20% reduction because the late transfer of the land to PPL (intended to thwart plaintiffs and extract trustees from litigation) materially and unnecessarily increased plaintiffs' costs; the defendants' letter proposing a new easement was not a formal settlement offer under r 14.6(3)(b)(v) and did not justify increased costs; no orders were made for interlocutory injunction costs because the file showed consent orders and costs were rese…
1 Apr 2022

THORNLEY v FORD [2022] NZHC 667

Citation

[2022] NZHC 667
Court

High Court

The court found the circa 1980 agreement created an equitable easement by agreement supported by consideration and part performance, but that equitable easement was extinguished by the intermediary July 1996 transfer of the burdened land to Messrs Wiley and Mills because those transferees took without actual or constructive notice and there was no evidence of an intention to defeat the interest at that time; rectification was not pursued and lacked evidence of mistake; the estoppel claim failed because plaintiffs could not show the defendants made a representation or had a duty to warn prior…
21 Feb 2022

PARKLANE INFRASTRUCT LIMITED v LU TRUSTEE LIMITED & ANOR [2022] NZHC 233

Citation

[2022] NZHC 233
Court

High Court

Trinity succeeded on the key practical issue after appeal (caveat should not extend beyond Lot 3), is entitled to costs on a 2B scale; the Court declined uplift for rejected settlement offers because offers were conditional, included third party undertakings or broader commercial terms and were not unreasonably rejected; no allowance for second counsel; limited allowance for memoranda (two days) resulted in 2B costs of $16,730 and disbursements $110.
29 Sept 2021

TEECE v VEINT [2021] NZHC 2557

Citation

[2021] NZHC 2557
Court

High Court

The court will sustain the caveat conditionally and require the applicants to file a specific undertaking: (a) that Dr Teece will pursue diligently the claim for specific performance to register the legal easement in CIV-2003-425-557; and (b) that the applicants will pay any damages the Court sees fit to award Mr Veint caused by the caveat if the claimed interest is not sustained. This balances the protection of the caveator's claimed equitable interest with protection of the registered proprietor's losses.
24 Mar 2021

THORNLEY and TREMAIN v FORD & OTHERS [2021] NZHC 611

Citation

[2021] NZHC 611
Court

High Court

Leave to amend was granted and PPL joined because the transfer to PPL presented a real issue (possible land transfer fraud) that should be determined at the pending trial. PPL is owned and controlled by a defendant so prejudice from joinder and amendment is minimal and largely self-inflicted. The proposed fraud pleading contained sufficient particulars to proceed to trial; factual disputes about prior transfers and truth of affidavit evidence are matters for trial, not grounds to refuse amendment. Discovery obligations and timetable should be extended accordingly.
9 Mar 2021

TEECE v VEINT [2021] NZHC 409

Citation

(2021) 22 NZCPR 87
Court

High Court

The caveat was sustained because the applicants established a reasonably arguable case for an equitable easement; the factual context (investigations pre-2004, a mutual stay, respondent's acquiescence and acknowledgement in the subsequent sale agreement) meant the delay did not remove any reasonable expectation of obtaining specific performance or other benefit and respondent did not establish that equities overwhelmingly favoured removal; leave reserved to impose conditions requiring diligent prosecution and possible undertakings.
1 Jul 2019

KINARA TRUSTEE LTD v INFINITY ENTERPRISES NZ LTD [2019] NZHC 1526

Citation

(2019) 20 NZCPR 318
Court

High Court

The Court held Kinara failed to prove an enforceable equitable easement by implied grant because the equitable interest was not shown to have survived the acquisition of indefeasible title by intervening registered proprietors (no evidence of actual knowledge/fraud); however Infinity's post‑purchase knowledge of the accessway, its acquiescence and silence while Kinara acted to its detriment (notably designing and constructing a building dependent on that access) made it unconscionable for Infinity to assert its legal title, so an equitable estoppel arose obliging Infinity to take steps to ena…
19 Mar 2018

STREET v REX ALISTAIR FOUNTAINE [2018] NZCA 55

Citation

(2018) 19 NZCPR 236
Court

Court of Appeal

The Court held that contemporaneous documentary evidence, conduct of the parties, consideration and acts of part performance established equitable easements in respect of the lower water scheme infrastructure on Waikaramu and The Downs (including the 1993–1994 modifications as a variation), and ordered registration steps and ancillary notice-of-entry conditions; the High Court's contrary finding was set aside.
21 Dec 2017

OKEY v KINGSBEER AND BERNADETTE PLAW IN THE CAPACITY OF TRUSTEES OF THE PAK TRUST [2017] NZCA 625

Citation

(2017) 19 NZCPR 25
Court

Court of Appeal

Court held an equitable vehicular right of way existed in favour of the appellants (dating to 1986 by part performance and writing); s348 LGA did not render the easement invalid because council permission could be inferred from Council conduct and the statutory penalties/registration provisions do not automatically void equitable rights; s317 modification/extinguishment was not warranted on the facts; court exercised its s313/s314 powers to order appellants to pay 75% and respondents 25% of the cost to upgrade the roadway to the standard required by Palmerston North City Council.