22 Dec 2022
The court permitted the amendment to the wording of the extinguishment order to align with LINZ registration requirements because the amendment achieved the same practical effect, reduced the impact on dominant titles, did not prejudice any party and therefore did not require re-service.
7 Dec 2022
The Court was satisfied on the evidence that since creation the land and water supply arrangements changed materially (residential subdivision, Watercare supply, removal of pipes) so that continuation of the easement in its existing form is obsolete and would impede reasonable use of the burdened land; statutory service requirements were met and no substantial injury was identified, therefore a partial extinguishment under s317 is justified and granted as specified.
13 Jul 2022
The High Court affirmed the District Court: although the nature and extent of use of the right of way had changed, other legitimate uses (ventilation, maintenance, roof access and incidental development restraint) remained; the Bowens failed to satisfy s317(1)(b) and s317(1)(d) and did not discharge the onus to show extinguishment was justified; the Judge did not create a new easement; application to admit further evidence was refused as not fresh or cogent.
25 May 2022
Leave to commence the proceeding by originating application was granted because the High Court has concurrent jurisdiction under s 316, the originating application process is efficient and appropriate in circumstances where the statutory framework and undisputed facts determine the issue, and substituted service was ordered because personal service on numerous respondents would be unduly onerous and unnecessary (save for Kaipara District Council).
12 Oct 2021
The rescission application was declined because the earlier Judge's decision was not shown to be wrong; the distinction between an easement being 'no longer of practical effect' and 'redundant' was immaterial, and s316(3) requires service on affected persons except where the court directs otherwise, so extinguishing a property right without notice was inappropriate in the circumstances.
2 Dec 2013
There is no reasonably arguable question of law for grant of special leave; assessment of reasonable compensation under s 317 properly includes consideration of prospective benefits to the applicant and losses to the easement holders using the willing buyer/willing seller approach as applied in Jacobsen Holdings; accordingly leave to appeal is dismissed.
10 Jun 2013
Special leave to appeal was refused because the applicability of Jacobsen Holdings by analogy to s 317 easement extinguishment is reasonably settled in this Court, the District Court and High Court correctly exercised their discretion and there was no substantive error of law or fact warranting further appeal; the limited sum at stake further weighed against granting leave.
22 May 2012
The High Court upheld the District Court's exercise of discretion to award compensation on the basis that extinguishment enhanced the servient owner's rights and value, the respondents suffered the loss of registered legal rights, and the District Court's valuation process (preferring and adjusting the respondents' expert evidence) was reasonable and within discretion; therefore the appeal was dismissed.
14 Dec 2011
The court extinguished the easement and fixed compensation as the sum of actual detriment ($37,300 inclusive of GST) plus additional compensation of $47,750 plus GST, the latter reflecting what parties would have agreed in a hypothetical negotiated settlement; given both parties had some success and flawed valuation approaches, costs were ordered to lie where they fall; relocation of services was ordered to be completed by 14 March 2012.
10 Aug 2011
The easement and encumbrance are properly susceptible to extinguishment under s317 given the changed circumstances (alternative access via Lot 52); s317(2) permits but does not mandate compensation and is silent on methodology; the respondent is entitled to recover identifiable out-of-pocket costs directly arising from extinguishment (vehicle crossing $5,600 and services relocation $31,700 totalling $37,300 exclusive of GST); the respondent's valuation of $230,000 was rejected as flawed because it ignored the respondent's contractual ability to require surrender and equated compensation with…