New Zealand Case Law: Decisions & Judgments

Topic

Section 129 property law act 1952

Legal area

Court

23 Dec 2008

KEIL V THOMPSON AND THOMPSON HC NAP CIV 2008-441-000294

Citation

openlaw-1051367b_6fef_4416_a88d_70a6461344ca.pdf
Court

High Court

Leave to appeal was declined because the jurisdictional issue had already been finally determined by Lang J and Cooper J had declined leave to appeal to the Court of Appeal, so issue estoppel/res judicata applied; additionally the matter lacked sufficient public or private interest to justify a further appeal in light of the repeal and replacement of s 129 by the Property Law Act 2007 and the Waller v Hider test.
25 Oct 2007

KEIL V THOMPSON HC NAP CIV-2007-441-303

Citation

openlaw-5172edcf_7578_4439_806e_82cf4a36b014.pdf
Court

High Court

Neither party was the overall winner for costs purposes; although the appeal succeeded on several points (including that the 2005 driveway was an intentional encroachment and certain orders on compensation and costs were set aside), the parties succeeded to a similar extent on the most important issues (notably the garage vesting and jurisdiction questions), and therefore costs of the appeal lie where they fall; orders regarding compensation and the District Court costs award are remitted to the District Court for reconsideration.
12 Sept 2007

KEIL V THOMPSON HC NAP CIV-2007-441-303

Citation

openlaw-7a8da28d_d270_4a40_ba5a_10f5d8a892f6.pdf
Court

High Court

The High Court upheld the District Court's vesting of the land under the garage in the respondents as just and equitable given the appellant's long acquiescence and the respondents' good faith purchase; the relaying of the driveway in 2005 created a new intentional encroachment so s129 relief is not available for the driveway alone; issues as to vesting of the driveway, compensation and costs require further factual assessment and are remitted to the District Court.
6 Sept 2007

VAN DER KAAP V HOLLAND AND ANOR HC HAM CIV 2007-419-088

Citation

openlaw-ca5d61fd_81d4_4757_ba9d_e2addc5be550.pdf
Court

High Court

The High Court held the District Court did not err in principle or exercise of discretion: the respondents were successful, s129 concessions did not negate success, the judge permissibly allowed second counsel costs, and Rule 48 authorised equal apportionment of costs between defendants; appeal dismissed.
23 May 2006

ANCHORAGE HOLIDAYS LIMITED V STEVENSON AND EARL AS TRUSTEES OF THE STEVENSON FAMILY TRUST HC NEL CIV 2005 442 220

Citation

openlaw-d428eb24_6629_4eaa_8742_7ce4c1273aba.pdf
Court

High Court

Section 129A does not apply to partial encroachments and is limited to buildings erected entirely on the wrong land; s129 relief is discretionary and will not be granted where the encroachment was intentional or arose from gross negligence by the predecessors and the successor company is tainted by that conduct; on the facts the predecessor intentionally encroached and the company knew of the encroachment at transfer, so relief under s129 and s129A is refused.
9 Apr 2003

TRAM LEASE LIMITED V PETER ALAN CROAD, JOCELYN CROAD AND DAVID JAMES GRIFFIN CA CA228/02

Citation

openlaw-4fc88233_f9ae_4bc5_9813_aa52b354e178.pdf
Court

Court of Appeal

The Court of Appeal held s129 jurisdiction applied to the encroachment by a building erected by a predecessor in title and that relief under s129 could be just and equitable; it rejected the estoppel arguments but affirmed that demolition by the lessor which would substantially interfere with the lessee's building and business could amount to derogation from the grant or breach of quiet enjoyment; appeal dismissed and matter remitted for further hearing on appropriate relief and terms.

New Zealand Case Law

KEIL V THOMPSON AND THOMPSON HC NAP CIV 2008-441-000294

KEIL V THOMPSON HC NAP CIV-2007-441-303

KEIL V THOMPSON HC NAP CIV-2007-441-303

VAN DER KAAP V HOLLAND AND ANOR HC HAM CIV 2007-419-088

ANCHORAGE HOLIDAYS LIMITED V STEVENSON AND EARL AS TRUSTEES OF THE STEVENSON FAMILY TRUST HC NEL CIV 2005 442 220

TRAM LEASE LIMITED V PETER ALAN CROAD, JOCELYN CROAD AND DAVID JAMES GRIFFIN CA CA228/02