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Bilkey v Kyriak [2020] NZHC 1264 (9 June 2020)

Last Updated: 22 July 2020

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 9 June 2020 at 2:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Duncan King Law, Auckland

BILKEY AND ANOR v KYRIAK AND ANOR [2020] NZHC 1264 [9 June 2020]

A dispute over a letterbox

• [1] This appeal arises from a dispute between the owners of adjacent residential properties over the placement of a letterbox on their shared driveway created by a registered right of way easement. In a judgment delivered on 17 December 2019, Judge A P Christiansen in the District Court at Auckland found that although the registered right of way easement does not provide for the placement of a letterbox at the entrance of the driveway, the respondents are nevertheless entitled to have a letterbox sited on the appellants’ land in that position.¹

• [2] The appellants appeal from the judgment and seek the quashing of the orders of the District Court granting the respondents a right to have a letterbox on their land together with costs on the District Court proceeding.

• [3] However, since the District Court hearing and judgment, the appellants have sold and transferred their property to an unrelated party. The new owner has agreed to grant a registerable easement over the property previously owned by the appellants, so as to enable the respondents to lawfully place their letter box on the right of way.

• [4] The respondents say that now that the appellants have sold their property, the previously disputed issue of whether they were entitled to place their letterbox on the right of way access to their property is moot, and the appeal should accordingly be dismissed on that basis. The appellants argue that although they are no longer the owners of the property, their dispute with the respondents should not be considered moot, as the issue of costs in the District Court proceedings is yet to be determined.

Background

• [5] The appellants were, until recently, the registered proprietors of the land and residence situated at 22 Arney Crescent in Auckland (No. 22). They settled their sale and transferred No. 22 to an unrelated purchaser on 7 February 2020.

• [6] Two of the appellants, Robert and Lynette Bilkey (the Bilkeys), were previously also the owners of the adjoining land and residence situated at 22A Arney

¹ Kyriak v Bilkey [2019] NZDC 25227.

Crescent (No. 22A). That property is located behind No. 22 and is accessed from the road by a shared driveway which passes over No. 22.

• [7] In December 2012 the Bilkeys agreed to sell No. 22A to Michael Kyriak and Christina Cie (the respondents). At the time that the agreement was entered into, No. 22 and No. 22A were held pursuant to cross-lease titles, and the agreement for sale and purchase required the Bilkeys to obtain and transfer a fee-simple title to the respondents on settlement. Pending settlement of their purchase the respondents occupied the property as tenants.

• [8] The fee simple titles were issued on 19 August 2013, with a memorial on the title to No. 22 noting an easement granting a right of way over the property, entitling the registered owners of No. 22A access to their property. However, the easement made no provision entitling the owners of No. 22A to locate their letterbox on the right of way. The Bilkeys’ sale and the respondents’ purchase of No. 22A was settled on 25 September 2013; the respondents were thereafter the registered proprietors of the property.

• [9] When the respondents entered into their agreement to purchase No. 22A and subsequently took up their tenancy of the property, the No. 22A letterbox was situated in one of a pair of brick pillars located on either side of the entrance of the shared driveway. The No. 22A letterbox was located in the pillar on the right-hand-side of the entrance and displayed the street number for No. 22A. The other brick pillar on the left-hand-side of the entrance to the driveway contained the letter box and street number for No. 22.

• [10] The respondents, initially as tenant occupants and then, following settlement of their purchase, as owners of No. 22A, used the No. 22A letterbox without any complaint by the Bilkeys. However, in April 2015 when the Bilkeys were temporarily absent from the property, the No. 22A letterbox was accidentally damaged by a building contractor employed by the Bilkeys. After speaking to a neighbour residing at 24 Arney Crescent, the contractor proceeded to demolish and remove the No. 22A brick pillar. The following month the contractor installed a temporary letterbox for No. 22A at the location of the original brick pillar.
• [11] The respondents commenced proceedings in the Disputes Tribunal. They sought a declaration that they were entitled to place a letterbox at the top of their driveway, and also claimed the cost of replacing the original letterbox and pillar which had been first damaged and then removed. The Bilkeys did not attend the hearing and in their absence the Tribunal made the declaration sought in favour of the respondents, but declined to make an order regarding the claimed cost to replace the pillar.²

• [12] The Bilkeys applied for a rehearing of the matter. The respondents opposed the application. The Disputes Tribunal however granted the application and directed a re-hearing.³ The respondents then filed a second claim relating to a dispute which had arisen regarding a fence which was not a boundary fence. The two claims were heard together at the rehearing on 29 February 2016. In its decision, the Disputes Tribunal noted that the respondents were seeking a determination requiring the Bilkeys to restore their letterbox to its previous condition, while the Bilkeys contended that the respondents were required to locate their letterbox on their own property. The Tribunal considered that respondents’ claims were more appropriately dealt with in the District Court and concluded that the claims did not fall within its jurisdiction. The Tribunal made an order to transfer the matter to the District Court.⁴

• [13] The respondents then proceeded on 15 November 2016, as owners of No. 22A, to file their claim in the District Court at Auckland against the appellants. In their statement of claim the respondents pleaded causes of action alleging: an implied grant of an easement to locate their letterbox in the position of the original brick pillar containing the No. 22A letterbox; an implied term of their contract of sale and purchase of No. 22A; equitable estoppel; and a cause of action relating to and seeking replacement of a fence.

• [14] In their statement of defence the appellants denied the respondents’ claims and alleged that the respondents had engaged in a campaign of harassment of the Bilkeys. Their allegations included that the respondents: had trespassed on the right of way on a number of occasions in relation to their installation of a metal parcel box on the right

² Kyriak v Bilkey DT Auckland CIV-2015-094-000767, 27 July 2015.

³ Kyriak v Bilkey DT Auckland CIV-2015-094-000767, 16 November 2015.

⁴ Cie v Bilkey DT Auckland CIV-2015-094-000767, CIV-2016-094-000254, 29 February 2016.

of way; had made unnecessary noise; had obstructed the right of way with their vehicles; had loitered and lurked on the right of way; had goaded their dog into barking, and had then made unjustified complaints to Auckland Council regarding barking by the Bilkeys’ dog.

Respondents’ application for interim injunction

• [15] On 8 February 2017 the respondents applied to the District Court for an interim injunction seeking orders permitting them to place a letterbox at the entrance of the right of way pending determination of their claim. The appellants opposed the application. By judgment of 22 February 2017, Judge P A Cunningham granted the respondents’ application and made interim orders to be complied with within five working days requiring No. 22A to be identified on the pillar on the road frontage of No. 22, and a letterbox to be installed behind the pillar for No. 22A.⁵ Judge Cunningham invited the parties to consider arranging a Judicial Settlement Conference, and reserved costs.

Judgment of Judge Christiansen

• [16] The respondents’ substantive claim was heard before Judge Christiansen in the District Court over several days between 2 – 6 December 2019. In a reserved judgment issued on 17 December 2019, the Judge noted that much of the evidence presented by the parties related to events which he considered to be irrelevant, commenting that the exchange of behaviour between the parties was unfortunate and concerned matters of a somewhat trivial nature. He said:⁶

At the end of it all these issues are about a relatively inexpensive feature at the top of a driveway which had clearly been intended for the use of the whole of their property which was later subdivided and for a period of about two years and four months had served the clear purpose of assisting the [respondents] as well as [the appellants]. And so it was always intended to be until the neighbourhood issues – some of a very modest nature, have caused the disruption and considerable costs that have been incurred.

⁵ Kyriak v Bilkey [2017] NZDC 3337.

⁶ Kyriak v Bilkey [2017] NZDC 25227 at [52].

• [17] Applying the principles established in Wheeldon v Burrows,⁷ Judge Christiansen found that the respondents had established:

1. that there was an implied grant of an easement for the letterbox in the position where it was located prior to being demolished, it being necessary for the respondents’ reasonable enjoyment of a residential property located in an Auckland suburb;⁸

2. that it was an implied term of the respondents’ sale and purchase agreement with the Bilkeys that the respondents were to be conveyed a right to use the letterbox in its location in the pillar at the end of the driveway; and

100. their claim of equitable estoppel, as the appellants were responsible for the respondents’ expectation that the right to use the letterbox would continue.⁹

• [18] Judge Christiansen concluded his judgment by directing that if the parties were unable to agree costs, then they were to file and serve costs submissions, but not before 20 January 2020, with any reply submissions to be filed and served within ten working days.¹⁰ Neither party filed any costs submissions and the District Court has not made any order for costs.

Submissions

The respondents’ submission – no live issues remain.

• [19] The respondents say that the appellants’ sale of No. 22, following the District Court hearing and judgment, has resolved the dispute over whether they are entitled to locate their letterbox on what was previously the appellants’ land. They say that the new owner of the property has consented to the registration of an easement over the title of No. 22 in favour of No. 22 A, entitling them to place a letterbox for No. 22A in the position where it was located when they entered into the agreement to purchase No. 22A from the Bilkeys.

⁷ Wheeldon v Burrows (1879) 12 Ch D 31 (CA)

⁸ Kyriak v Bilkey [2017] NZDC 25227 at [54].

⁹ At [55] and [56].

¹⁰ At [57].

• [20] The respondents say that there is therefore no longer any live issue between them and the appellants as regards whether they are entitled to site their letterbox on the right of way. The respondents submit that accordingly the issue arising in the appeal no longer exists and the appeal is moot. They say that the central appeal issue of whether or not they were entitled to position their letterbox on the shared driveway is not one of general or public importance, and that the appeal should be dismissed.

• [21] The respondents further submit that even if the appellants had remained the owners of No. 22, the District Court judgment from which they have appealed made no orders affecting the appellants’ land. They say that the relief they were granted in the District Court was binding on the Bilkeys personally as parties to the contract for the sale and purchase of the property, but that the Court did not grant the respondents any right over the land.

• [22] The respondents respond to the appellants’ submission that the District Court costs orders will be affected by the outcome of the appeal, by noting that the District Court costs have not yet been determined, and that they have not made an application for an award of costs in relation to the District Court proceeding.

The appellants’ submissions on the Court hearing the appeal notwithstanding it being moot

• [23] Mr McCartney, for the appellants, says that the stressful nature of the appellants’ ongoing dispute with the respondents over a period of years, prompted them to sell the property. Counsel submits that, although the appellants’ sale of the property means they no longer have any proprietary interest in No.22, costs in relation to the District Court proceedings remains a live issue between the parties.

• [24] Counsel submits that the appeal also raises an important point of law as to whether the title of a registered proprietor of land can be “attacked” despite the indefeasibility protection in s 62 of the Land Transfer Act 1952, where there is no in personam claim. He submits that as the District Court judgment stands it is inconsistent with the system of land registration, and potentially also applies to other land owners. He submits that notwithstanding the authoritative and binding decisions

of more senior courts on the issue, the District Court decision should not be allowed to stand as it could be applied as a precedent decision.

• [25] He says that appeals such as this one, which raise issues of broader public interest, may nevertheless be heard and determined by the Court, despite the issue between the parties being moot.

• [26] Mr McCartney further submits that although the District Court orders did not grant the respondents the right to a registerable easement entitling placement of their letterbox on the right of way, the orders did affect the appellants’ title. Specifically, the orders would have enabled them to lodge a caveat to protect their equitable easement, and they could then have applied to the Court for an order granting them a legal easement to be registered on the title.

Law

• [27] The Supreme Court in Gordon-Smith v R set out the Court’s approach to hearing and deciding appeals where the live issues in dispute between the parties have ceased to exist:¹¹
  • [14] The traditional position taken in New Zealand has been that the courts will not hear an appeal “where the substratum of the ... litigation between the parties has gone and there is no matter remaining in actual controversy and requiring decision”.¹² This approach was followed in accordance with a principle referred to in Sun Life Assurance Co of Canada v Jervis,¹³ where Lord Simon LC said:¹⁴

[I]t is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue.

• [15] In 1999, in R v Secretary of State for the Home Department ex Salem,¹⁵ the House of Lords departed from the view that it would invariably be an improper exercise of appellate authority to hear appeals in relation to

¹¹ Gordon-Smith v R [2008] NZSC 56, [2009] 1 NZLR 721. See also: North Holdings Ltd v Rodney District Council [2004] NZCA 214; (2004) 17 PRNZ 384 (CA) at [13] – [19]; and Director of Proceedings v I (2004) 17 PRNZ 390 (CA) at [22] – [23].

¹² Finnigan v New Zealand Rugby Football Union Inc (No 3) [1985] NZCA 111; [1985] 2 NZLR 190 (CA) at 199.

¹³ [1944] AC 111.

¹⁴ At 114.

¹⁵ [1999] UKHL 8; [1999] 1 AC 450.

questions that have become moot. Speaking for all members, Lord Slynn said:¹⁶

[I]n a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal even if by the time the appeal reaches the House there is no longer as lis to be decided which will affect the rights and obligations of the parties inter se ...

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeal which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so ...

• [16] As the passage cited from Lord Slynn’s judgment in Salem demonstrates, mootness is not a matter that deprives a court of jurisdiction to hear an appeal The question of whether this Court should hear an appeal

which otherwise qualifies under statutory criteria for a grant of leave but is moot, is rather one of judicial policy. In general, appellate courts do not decide appeals where the decision will have no practical effect on the rights of parties before the Court, in relation to what has been at issue between them in lower courts. This is so even where the issue has become abstract only after leave to appeal has been given. But in circumstances warranting an exception to that policy, provided the Court has jurisdiction, it may exercise its discretion and hear an appeal on a moot question.¹⁷

...

[18] The main reasons for the general policy of restraint by appellate courts in addressing moot questions are helpfully identified by the Supreme Court of Canada in Borowski v Attorney-General.¹⁸ They are, first, the importance of the adversarial nature of the appellate process in the determination of appeals, secondly, the need for economy in the use of limited resources of the appellate courts and, thirdly, the responsibility of the courts to show proper sensitivity to their role in our system of government. In general advisory opinions are not appropriate.

• [28] The Supreme Court restated those principles in Baker v Hodder,¹⁹ adding:

[33] ... All that can be said is that, in light of the considerations underlying the policy of restraint, a decision to hear a moot appeal should be made only in exceptional circumstances. These might be found in the circumstances of the particular case (for example, serious procedural unfairness at the first hearing) or the broader public interest (for example where an important legal point is raised).

...

¹⁶ At 456 – 457.

¹⁷ Borowski v Attorney-General of Canada [1989] 1 SCR 342 at 353.

18. At 358 – 363. See also the subsequent decision in Smith v The Queen and Attorney-General of Ontario [2004] 1 SCR 385.

¹⁹ Baker v Hodder [2018] NZSC 78, [2019] 1 NZLR 94 at [32] – [33].

[37] The fact that costs remain at issue will not, however, necessarily mean an appellate court would hear an otherwise moot appeal.²⁰ But an award of costs may be a circumstance that adds weight to the case for hearing a substantive appeal even if the relief originally sought in the proceeding is no longer available.²¹

Discussion

• [29] In the present case it is clear that the dispute between the parties, over the location of the No. 22A letterbox, has ceased to exist following the appellants’ sale of No. 22. The new owner of No. 22 has agreed to grant the respondents a registered easement to enable them to place and maintain a letterbox for No. 22A at the entrance to the shared driveway (its position prior to being damaged and removed by the Bilkeys’ contractor in April 2015).

• [30] While an outstanding issue as to costs can be a factor to be relied on in support of hearing a substantive appeal, here the scope of the appeal does not include an appeal against the District Court costs. No costs order was made by the District Court, and the respondents as the successful party in the District Court have not made an application for costs. Furthermore, I reject the appellants’ submission that the appeal should be determined because the outcome will be relevant to any costs order that may be made by the District Court.

• [31] In my view, hearing and determining the substantive appeal so as to enable a decision regarding costs in the District Court to be decided and inform the outcome of the appeal, would have no utility and be a quite inappropriate use of this Court’s time and resources. The Supreme Court did not consider Baker v Hodder to be the case for resolving the question of whether an award of costs on its own could ever justify hearing an otherwise moot appeal.²² Similarly, I do not consider this case to warrant the resolution of that question.

²⁰ See the comments of Lord Brown in R (Bushell) v Newcastle upon Tyne Licensing Justices [2006] UKHL 7, [2006] 2 All ER 161 at [28]. See also New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 60 at [33].

²¹ Whether an award of costs on its own could ever justify hearing an otherwise moot appeal is not something we need to resolve in the present case.

²² Baker v Hodder [2018] NZSC 78, [2019] 1 NZLR 94 at [37] fn 29.

• [32] The present case is clearly not an exceptional case of the kind referred to by the Supreme Court in Baker v Hodder.²³ There is no broader public interest component, no important legal point to be raised, no suggestion of serious procedural unfairness at the first hearing, nor the identification of any other “exceptional” circumstances. The legal principles and prerequisite criteria applicable to the establishment of equitable easements as set out in Wheeldon v Burrows have been recognised by the Supreme Court in Mikitasov v Collins²⁴ and applied by the High Court in Rarere v Phildagap Ltd²⁵ and more recently in Kinara Trustee Ltd v Infinity Enterprises NZ Ltd.²⁶ Against that background and the authority of those decisions, I do not consider that the appellants have shown there to be any question of law or issue of public importance that would warrant the Court hearing and determining the appeal for the reason that if it is allowed to stand the District Court decision could be applied as a precedent decision. The binding authorities of superior courts precludes that occurring.

• [33] The hearing of the appeal would require the parties, and particularly the respondents, to be involved in further time-consuming and expensive litigation having the effect of further disrupting their lives, in relation to a comparatively trivial issue over the siting of a letterbox that has been escalated out of all proportion by the parties in the course of the dispute that led to the proceedings.

Result

• [34] I accordingly dismiss the appeal.

• [35] I reserve the issue of costs, and direct the parties to file memoranda as to costs. The respondents are to file and serve their memorandum within five working days of issue of this judgment. The appellants are to file and serve their memorandum in reply within five working days following service on them of the respondents’ memorandum.

Paul Davison J

²³ At [33].

²⁴ Mikitasov v Collins [2009] NZSC 1.

²⁵ Rarere v Phildagap Ltd (2011) 14 NZCPR 133 at [15] – [16]

26. Kinara Trustee Ltd v Infinity Enterprises NZ Ltd [2019] NZHC 1526, (2019) 20 NZCPR 318 at [47] – [49].