Hill v Elimelch [2017] NZDC 17227

Published 25 March 2019

Jurisdiction — shared vehicle access way dispute — easement — whether parties can opt out of LTR dispute resolution process — Property Law Act 2007 Schedule 5 — Land Transfer Regulations 2002 — Land Transfer Act 1952 — Perpetual Trustee Limited v Turner — Zurich Australian Insurance v Cognition Education Ltd. This determination of a preliminary issue of jurisdiction relates to a dispute that had arisen between parties to a registered interest under an easement regarding the use of a shared vehicle access way. The applicants applied for an enforcement and ancillary orders under s 313 of the PLA, relying on the rights and powers under Schedule 5; the respondents sought a stay of proceedings on the basis that the applicants had not followed the implied dispute resolution process prescribed by the Land Transfer Regulations, Sch 4, cl 14. That there is a conflict between the PLA, s 313 and LTR, Sch 4, cl 14 was acknowledged by both parties. The issue for the court was the interplay between the LTR and the PLA. The court applied the principles as in "Zurich Australian Insurance" and found that s 313 of the PLA provided a discretionary power to the Court given the use of the phrase “a court may make an order". The court found that Schedule 4 of the LTR prevails in terms of jurisdiction and the applicants claim was referred to dispute resolution and arbitration pursuant to the LTR. Judgment Date: 1 September 2017

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