New Zealand Case Law: Decisions & Judgments

Topic

Right-of-way

Legal area

Court

20 Jun 2018

McINNESS v JONES [2018] NZHC 1499

Citation

[2018] NZHC 1499
Court

High Court

The court ordered limited tailored discovery proportionate to the issues: defendants must disclose the building consent applications and building consents for 161 Tamaki Drive (20A/20B) and 26 Selwyn Avenue to identify the developer and the scale of works; delivery dockets/invoices are not required unless plaintiffs elect within 10 working days to pursue a per-trip wrongful use charge, in which case defendants must obtain and disclose delivery dockets; budgeted costs and negotiation records with 18 Selwyn Avenue are not discoverable as they are peripheral and not necessary to fix wrongful use…
1 Oct 2014

SINGH AND AND BOUCHIER v POTTERS PARK PROPERTY LTD [2014] NZHC 2392

Citation

[2014] NZHC 2392
Court

High Court

Clause 3 of the agreement are conditions precedent; there is no necessary implication that Potters was obliged on execution to apply to Council or notify for a two-way right-of-way for the Trust; Potters did not breach the agreement and its obligations ended when the Trust failed to obtain the consents within the agreed period, so the Trust is not entitled to specific performance or damages and the agreement is unenforceable.
20 Aug 2014

BA TRUSTEES LTD v MA'A LTD [2014] NZHC 1967

Citation

[2014] NZHC 1967
Court

High Court

The court varied the easement under s 317 to permit the garage to remain within defined limits, declared the garage had a frontage wholly on the right-of-way, ordered the second defendants to remove the encroaching part by a date specified, and allocated costs to reflect the mixed outcomes: plaintiffs awarded costs against first defendants to 22 October 2013, plaintiffs awarded 50% of post-22 October 2013 costs against second defendants, and second defendants awarded costs on their counterclaim, resulting in a modest net payment by the second defendants to the plaintiffs.
19 Jul 2007

FREESTYLE ENTERPRISES V STARFIN GRP AND ANOR HC AK CIV 2006-404-007820

Citation

openlaw-7129a36c_0b79_4aa8_8e29_295c1ba5d0bd.pdf
Court

High Court

The 1995 parking easement was created by a transferor who owned the three lots and expressly defined the dominant land to include the two lots together with the 1985 right-of-way; on construction of the 1995 instrument and applying the ancillary-use principle, the court held the dominant owners are permitted to access the parking area (D) via the A portion of the 1985 right-of-way and such use does not impermissibly extend the 1985 grant.
2 Nov 2005

ROBERTSON V GILBERT AND ORS HC AK CIV: 2001-404-3141

Citation

openlaw-9757c94e_a9c0_4ad4_8720_85a35eed56c4.pdf
Court

High Court

The court ordered implementation of the partition to create Lot 3 in favour of the plaintiff according to the experts' 29 July 2005 plan, including a right‑of‑way and a building height restrictive covenant, conditioned on obtaining necessary RMA consents; the counterclaim was dismissed as issues were already finally determined (res judicata); the monetary adjustment is set at $23,100 per expert evidence and costs are to be assessed at a hearing.

New Zealand Case Law

McINNESS v JONES [2018] NZHC 1499

SINGH AND AND BOUCHIER v POTTERS PARK PROPERTY LTD [2014] NZHC 2392

BA TRUSTEES LTD v MA'A LTD [2014] NZHC 1967

FREESTYLE ENTERPRISES V STARFIN GRP AND ANOR HC AK CIV 2006-404-007820

ROBERTSON V GILBERT AND ORS HC AK CIV: 2001-404-3141