New Zealand Case Law: Decisions & Judgments

Topic

Easement in gross

Legal area

Court

18 Oct 2023

THE FEDERATED MOUNTAIN CLUBS OF NEW ZEALAND INC v GRIFFIN CREEK HYDRO LTD [2023] NZHC 2917

Citation

[2023] NZHC 2917
Court

High Court

The Concession does not limit extraction to 1.2 cumecs because its plain wording authorises taking of water without a volumetric cap, the Concession's conditions address hydrological protection by imposing a residual-flow cease-take mechanism with monitoring (conditions 8 and 9), the delegate had discretion and chose that mechanism rather than a fixed volumetric limit, water allocation is addressed by RMA resource consents, and the criteria for implying a term imposing a volumetric limit are not satisfied.
2 Sept 2021

0763644e-8537-43ba-821f-f38e235fbbd8.pdf

Citation

openlaw-20414409_38d8_4938_a453_479c8b3cce2d.pdf
Court

High Court

The Court granted the application to extinguish the historic stormwater easements because the servient land's use has materially changed since the easements were created, the existing open drain is inadequate for urban development, and the proposed replacement underground stormwater system and replacement easement in gross will not substantially injure beneficiaries; extinguishment was ordered subject to conditions ensuring registration of a replacement easement in favour of Christchurch City Council and construction of an equivalent or better stormwater system in accordance with council cons…
29 May 2020

PARKLANE INFRASTRUCT LIMITED v LU TRUSTEE LIMITED & ANOR [2020] NZHC 1182 [29 May 2020]

Citation

[2020] NZHC 1182
Court

High Court

The Court held there is a reasonably arguable case that the 14 February 2019 grant gave Parklane an equitable easement: the right was sufficiently certain to be the subject of a grant, there was at least arguable valuable consideration and an intention to create a proprietary right (not merely a personal licence), and the writing requirement was satisfied; accordingly it was not patently clear the caveat could not be sustained and the Court declined to exercise its discretion to remove the caveat, but preserved it on condition Parklane issue proceedings for specific performance within 15 work…
22 Dec 2010

RIDGES RD LIMITED V HIGHLAND SPRINGS NO 2 LIMITED AND ANOR HC DUN CIV-2010-412-000517

Citation

openlaw-0a2658b4_6380_4088_8070_95b4dbbf9734.pdf
Court

High Court

The caveator demonstrated a reasonably arguable case that a binding easement arose from the September 2008 correspondence and that the 15 July 2009 sale agreement plausibly and unconditionally assigned the business assets including the easement rights to Ridges under s50 Property Law Act 2007; factual disputes about variation, repudiation and sham status could not be resolved in the summary caveat proceeding, and there was no clear basis to hold the assignment was partial or merely equitable requiring joinder of the assignor; accordingly the court exercised its discretion to prevent lapse of…
19 Dec 2008

HEXTON HOLDINGS LIMITED V MACLAURIN AND MACLAURIN AND ORS HC GIS CIV 2006-417-0092

Citation

openlaw-e2f6bc73_77b1_4993_82f1_19d3cb596eb6.pdf
Court

High Court

Transfer 15488 is an easement in gross which was validly transferred through the chain of title and effectively vested in the Streeters by the 1982 transfers; the erroneous memorials on various Certificates of Title recording T15488 as appurtenant are to be corrected by the Registrar; the easement has not been extinguished; accordingly Hexton's broad declarations and injunctions to prevent historic users taking water, to create new easement corridors or to remove servient tenement improvements, are declined except for declarations limited to correcting incorrect memorials and specific determi…
7 Nov 2005

FALOON V THE COMMISSIONER OF INLAND REVENUE HC TAU CIV 2005-470-508

Citation

openlaw-6af5829d_c409_4e9e_aa14_08c9dd952b22.pdf
Court

High Court

The Statement of Claim was struck out because the plaintiff lacked legal status to bring the claim—he was neither donor nor donee, the donor company was in liquidation and any relevant rights vested in the Official Assignee under s42 Insolvency Act 1967—and therefore had no standing; alternatively the proceeding amounted to an abuse of process. Although the valuation regime in s68A might apply to an easement in gross, that potential legal point cannot save a claim brought by a party without the requisite statutory status.

New Zealand Case Law

THE FEDERATED MOUNTAIN CLUBS OF NEW ZEALAND INC v GRIFFIN CREEK HYDRO LTD [2023] NZHC 2917

0763644e-8537-43ba-821f-f38e235fbbd8.pdf

PARKLANE INFRASTRUCT LIMITED v LU TRUSTEE LIMITED & ANOR [2020] NZHC 1182 [29 May 2020]

RIDGES RD LIMITED V HIGHLAND SPRINGS NO 2 LIMITED AND ANOR HC DUN CIV-2010-412-000517

HEXTON HOLDINGS LIMITED V MACLAURIN AND MACLAURIN AND ORS HC GIS CIV 2006-417-0092

FALOON V THE COMMISSIONER OF INLAND REVENUE HC TAU CIV 2005-470-508