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Supreme Court of Samoa |
IN THE SUPREME COURT OF SAMOA
Meredith v Philips, Philips and Cook [2015] WSSC 54
| Case name: | Meredith v Philips, Philips and Cook |
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| Citation: | |
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| Decision date: | 19 May 2015 |
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| Parties: | Richard Theodore Meredith (Applicant) Paul Philips, Vivienne Philips and Jewel Cook (Respondents) |
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| Hearing date(s): | |
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| File number(s): | |
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| Jurisdiction: | Civil |
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| Place of delivery: | Mulinuu, Courthouse |
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| Judge(s): | Justice Vaai |
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| On appeal from: | |
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| Order: | (1) The car parking lots next to and which adjoin the Sunshine Biscuit building to the east and north shall remain and will not be removed. |
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| Representation: | L Tamati for Applicant P Fepuleai and D Roma for Respondents |
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| Catchwords: | Dispute - Use of Easements- Right of Way – boundaries – car parking lots |
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| Words and phrases: | |
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| Legislation cited: | |
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| Cases cited: | McKellar v Guthrie Iakopo v Rutherford |
| | Leith v Evans NZHC Pettey v Parsons |
| Summary of decision: | |
IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN:
RICHARD THEODORE MEREDITH
Applicant
AND:
PAUL PHILIPS, VIVIENNE PHILLIPS & JEWEL COOK
Respondents
Counsel: L Tamati for Applicant
P Fepuleai and D Roma for Respondents
Conclusions: 7 May 2015
Reasons: 19 May 2015
JUDGMENT OF THE COURT
Introduction
1. This is an unfortunate dispute between a brother and a sister which has arisen over the use of easements in a subdivision of land created by their late father, a respected and successful businessman. The brother is the plaintiff, the sister is the second defendant, and the first defendants are the daughter and son in law of the second defendant.
2. The late Mr Meredith, father of the plaintiff and second defendant operated his several businesses on his land at Levili which he subsequently sub-divided in the year 1981 into three parcels of just under half acre each. The subdivision is accessed from the main road to the west by a right of way of over eighty meters and about six meters wide. The right of way joins parcel 797 on its South West boundary.
3. Parcel 797 has a two storey building to the North West boundaries. On the bottom was the printing press and the top floor was for residence. The rest of parcel 797 was made an easement. This parcel was conveyed to the plaintiff.
4. Parcel 798 immediately to the east of parcel 798 also has a two storey building along the West and North boundaries. The bottom floor housed the bakery whilst the top floor was residence for the second defendant. The rest of the parcel was made into an easement. This parcel was conveyed to the second defendant.
5. To the south of parcel 798 is parcel 593. Against the North East corner is a building which housed a meat factory and the building against the North West corner housed the biscuit factory. The space between the two buildings was turned into easement. At the southern boundary is a two storey building in which the plaintiff and his family live on the top floor. This parcel was conveyed to the plaintiff.
6. At the end of this judgment is a copy of the subdivision showing the easements on parcels 797 and 593 in yellow, and the easement on 798 in blue. The top part of the plan is North. The easement on parcel 797 is for the benefit of parcels 798 and 593; easement on 798 is for the benefit of parcels 797 and 593, and easement on 593 is for the benefit of 797 and 798. In effect the balance of the land on each parcel not occupied by the buildings was turned into an easement for the benefit of each other.
7. Businesses operated by the late Mr Meredith have long ago vanished. Prior to the damage caused by Cyclone Evan in December 2012 the buildings on parcels 797 and 593 were leased out by the plaintiff to several enterprises including a wholesaler called Tradepac. On parcel 798 the first defendants operated a gift shop which was subsequently expanded to include a restaurant.
8. Cyclone Evan caused substantial damage to the compound particularly the buildings on parcel 593, leased as warehouses, and were severely damaged by flooding.
The dispute
9. When the first defendants resumed their shop and restaurant businesses in early 2013 after completing repairs caused by the cyclone they were confronted by the plaintiff concerning the congestion of the easements caused by the defendant’s clientele’s vehicles which not only created difficulty for the plaintiff to access his parcel 593 through 798, but most of the spaces on parcels 593 and 797 were also used as parking lots by the defendant’s customers. These proceedings were brought about by the events commencing in March 2013 when the first defendants resumed business after Cyclone Evan.
10. The evidence (documentary and oral) reveals a deplorable situation of which neither side can feel proud, the inability of the parties to understand each other or to resolve the problem in a common sense way, particularly, given that both parties had a common understanding of the reasons why their late father created the unusually extended easements.
11. While the initial difficulty may have arisen from the defendant’s mistaken belief to the nature, purpose and use of the easement on parcel 798, the attitude adopted by the plaintiff himself escalated the confrontation which led me to think that each party had done things deliberately to annoy each other.
12. The defendants have, despite protests by the plaintiff, marked four parking lots on parcel 798; the plaintiff on the other hand placed No Parking signs on parcel 593 and 797, extended a car port onto the easement on parcel 593 and erected a metal fence on 797.
13. In March 2013 the first defendants were back in business with their gift shop and were about to re-open the restaurant. This prompted an email letter from the plaintiff on the 28th March 2013. The first two sentences read:
“I am informed you are planning to restart your restaurant soon. While it is my belief that everyone is free to do what he likes with their own land, I must now inform you that we have plans for our properties here at Levili which will not allow us to give you extra parking for your customers.”
The extra parking the plaintiff was talking about are the easements on his parcels 797 and 593.
Further on the same letter says:
“The back and side of my building as well as the space opposite the former Tradepac will no longer be available (This is for my customers and container parking space). This limits your parking space to your property which is how it should be.”
The message conveyed by the letter was loud and clear. Easements on parcels 593 and 797 were out of bounds for the parking of vehicles by customers and clients of the first defendants.
14. The first defendants with the second defendants approval commenced to mark car park spaces on the easement on parcel 798. On the Southern boundary of 798 and against the wall of the Sunshine Biscuit factory on the North West Corner of parcel 593 parking lots were marked for the cars to park diagonally against the Biscuit factory. On the other side (northern) against the wall of the building on parcel 798 parking lots were marked for cars to park parallel to the building. The space between the two parking lots is about three and half meters which the plaintiff claims is not sufficient and safe for big vehicles to go through.
15. If the parking lot along the wall of the building on parcel 798 is removed a space more than five meters will be available for vehicles to pass and repass.
16. The other marked parking lot is immediately to the east of the sunshine biscuit factory and the fourth one is on the opposite side to the east. The space between these last two parking lots is about three and half meters. Removal of one of the parking lot would provide extra space on the easement more than five meters.
The plaintiff’s case
17. Firstly the plaintiff contended that the Levili compound and buildings thereon were designed by his late father primarily for commercial purposes and as an industrial compound and the compound shared a common driveway. He says at paragraph 16 of his affidavit:
“The driveway shared in common by the occupants and users of lots 797, 798 and 593 were created by easements over each of the said lots for the common purpose and benefit of each other and with the view of accommodating access by all users including access by commercial vehicles and machinery.”
18. As an industrial compound the plaintiff was of the firm view that the easements were created and designed primarily to allow access for heavy vehicles and for primary storage of shipping containers and other products. Under cross examination he was asked (page 42 transcript)
Question: The front of the building they park their cars as well as their containers, is that correct?
Answer: Are you referring to the blue piece or yellow piece?
Question: talking about the blue.
Court : 798?
Answer: on 798 I believe so.
Question: So your tenant Tradepac was also using that area for parking their cars as well as having their containers stored?
Answer Your honour I think we have to go back here because on the map it says bakery and resident. Now when my father and mother had this building we have always parked containers all over these easements, there’s no exception, everyone of these places including 797 and 798, all used up at the time of my father and mother and up to our time we still use with the understanding that with businesses involving warehouses containers are brought in, they are unloaded and removed. It’s been a common practice for over 40 years.
19. The plaintiff’s response to the next line of questioning at page 43 transcript captures the crux of the complaint.
Question: (my translation) There are photos to show that at the time of your lease with Tradepac, these are photos of their cars and containers parking on the land of which you are complaining about for having car parking lots marked on it.
Answer: Your honour I think we have to come back to the relevancy of what’s happening here. The relevance, my objection in here is not about containers, my objection is turning these easements into parkings, that is my objection, it’s not the fact that cos I know for a fact that my sister also had her clients, because there were companies that were leasing her building before Vivien and Paul, a company called Roto Motors Samoa that were manufacturing water tanks, and they were there. Something like 4 to 5 years, they also brought in containers, and they were parked on the easements. I had no objection to it, we all understand this is an industrial compound, they bring them in to unload and taken away. What I’m trying to bring back is the relevancy of this whole matter before your honour, is the fact that my family turns what is stated in the memorandum of easements, from rights of way to permanent parking, that’s what I’m trying to bring very clearly, that is my objection, not about containers.
20. He claims that a result of the reduced space on the easement on lot 798, as a result of marked car parking lots, the container trucks could not access his lot 593, and as a result he could not lease his buildings on lot 593 after they have been renovated in May 2013 with considerable amounts of funds borrowed from the Development Bank of Samoa. He deposed at paragraphs 57 and 58 of his sworn affidavit:
57. That ... I have borrowed from the Development Bank of Samoa a considerable amount of money in renovating my buildings and reinforcing concrete walls to abate future flooding in the hope of attracting new clients to rent my buildings and have listed my buildings with Samoa Realty, a real estate agent in town. Attached and marked “S” is a copy of my DBS loan letter.
58. That the warehouse were renovated and completed for leasing in May 2013.
21. It is quite obvious that since Cyclone Evan in December 2012 neither of the buildings on parcel 593 has been rented out as a warehouse and the only container which entered the parcel was the one delivered in April in 2014 for the plaintiff’s son personal materials.
22. It is also quite obvious that despite his assertions in his affidavit the plaintiff’s warehouse were not renovated and ready for leasing in May 2013. In the first place the loan from the Development which he requested to finance his renovations was not approved until October 2013 (as evidenced by exhibit “S” of his affidavit) discussed in paragraph 20 above. Secondly in his letter of the 27th August 2013 to the first defendants (exhibit “L” of his affidavit) complaining about the easements and threatening court action, he said at the very first sentence:
“I have been advised to inform you of the following situations as I am near completing the repairs to my properties ...”
The letter from the Development Bank is dated 4th October 2013 and advised the plaintiff that a $200,000 loan has been approved to assist in cost of damages caused by the cyclone. And if he told the defendants by letter of 27th August 2013 that his renovations were near completion then his evidence that the buildings were ready for lease in May 2013 was a blatant, deliberate lie.
23. The plaintiff’s second contention is that the first defendant’s restaurant and shop was unsuitable for the compound, not only because his father did not contemplate such business on the land but also due to the traffic congestion it creates on the easements. He told the court (page 44 transcript) under cross examination:
“... they can do whatever business they wanted in there but they got to understand that some businesses may not be appropriate for their particular property and I would say to you we’ve been there for over 40 years, my father did not contemplate during his lifetime restaurants will be operated on these lands, my father and mother never thought this will happen ...”
24. Despite his contention and belief that his mother and father did not contemplate the use of the compound for a shop and restaurant he did offer for sale to the second defendant parcel 797 at a price of $900,000 which he claimed in his evidence was done out of love for the business of defendant as well as a solution to the parking congestion.
Unsurprisingly the offer was promptly turned down. The property has since been placed on the market and will undoubtedly be on the market for generation for very obvious reasons. One of them is that what has been put on the market is the building only and the land it stands on, because the rest of the parcel is an easement which makes the price of $900,000 an incredibly unrealistic price. As an easement the defendants and occupier of parcel 593 can continue to use it.
Defendant’s Case
25. Although the defendants originally in their statement of defence took the view that the easement from the main road ends at the boundary of 798 this was not pursued at the trial. This view was probably adopted as a result of advice given to them.
26. The defendant’s principal defence is that the parking lots were marked out to provide for the orderly parking of vehicles; they were placed on spaces on which the shipping containers were placed before their removals from the compound and there were sufficient spaces between the parking lots so that there was no substantial or complete interference with the plaintiff’s right of access. They were obliged to provide for the orderly parking of their customers’ cars as the plaintiff has deliberately constructed extensions and placed No Parkings signs on the easements on parcels 797 and 593.
Discussion
27. A wrongful interference with a right of way constitutes a nuisance McKellar v Guthrie [1920] NZGazLawRp 58; (1920) NZLR 729; Iakopo v Rutherford (2012) NZHC 1557 3/7/2012. However unless the interference is substantial, no action will lie. McKellar v Guthrie; Pettey v Parsons [1914] UKLawRpCh 92; (1914) 2 Ch 653;
28. In Leith v Evans NZHC, Dunedin (21/8/1986) Cook J emphasised that substantial interference is a question of fact. He considered that a gate maintained at the entrance of the easement, provided it could readily be opened and remained unlocked, would not constitute substantial interference even if it was an irritation.
29. In Pettey v Parsons (supra) the court recognised that so long as there is reasonable access to the land and a reasonable opportunity of exercising the right of way, there is no obstruction and there is no derogation. This is a question of fact. In that case the court held that the plaintiff was entitled to erect a foot gate on the condition that it would be kept open during business hours and must always be unlocked. It could not, however, be permanently closed and locked as that would then become a substantial interference with the rights.
30. The issue of obstructing the right of way is critical as the right of passage conferred by an easement would be nugatory if there were obstructions. Obstruction as noted above must surely mean something which creates a significant hindrance or a complete block.
31. On the evidence, the plaintiff acknowledged that the parking lots marked by the defendants were on the same areas of the easement where the containers used to be stored when the late Mr Meredith operated his businesses and subsequently after his death when the buildings were leased to third parties. And there is a space of about three and a half to four meters between the parking lots for vehicles to go through to access the plaintiff’s parcel 593.
32. The three and half to four meter space is more than sufficient for an ordinary vehicle of modest width to pass through but the easements were created specifically to suit the use of the lands at the time, one of which was for bigger heavier, vehicles to access the several factories. A wider right of way of more than five meters can be achieved by removing the two marked parking lots to the left of the easement when one is driving in from the road. To remove any doubt the marked parking lots to the north and to the east of the easement on parcel 798 ought to be removed so that the two parking lots next to and adjoining the Sunshine Biscuit building to the north and east shall remain. This ruling does not prohibit the defendants from using the easements on 797 and 593.
33. The site visit and the testimony of the truck driver who delivered and uplifted the container in April 2014 confirmed and demonstrated that a container truck turning onto parcel 593 from parcel 798 cannot enter parcel 593 in one complete turn even if the easement on parcel 798 was completely free of vehicles. A manoeuvring move by reversing back to parcel 798 is required. This tends to confirm the submission and contention by counsel for the defendants that in 1981 when the subdivision of the land was done container trucks were not in existence in Samoa and containers were delivered by six wheeler trucks accompanied by heavy lifts to unload and reload containers. Obviously a container truck would have great difficulty going into and coming out of parcel 593 if containers were stored where the parking lots have been marked on parcel 798.
Damages
34. The plaintiff claims $310,000 special damages for loss of earnings from his three warehouses and a flat from June 2013 at a rate of $20,000 per month. He also seeks damages of $200,000 for the deliberate high handed manner with which the defendants ignored the plaintiff’s right to the easement, as well as the physical verbal and psychological abuses which prompted the plaintiff and his wife to seek protection orders from the family. Punitive damages are also sought.
35. I have already determined in paragraph 22 above that the plaintiff’s testimony and affidavit that his warehouses were completed in May 2013 and ready for renting were false. It follows that I also reject the evidence of the real estate agent, Rosita Brighouse-Slaven that the warehouses were already renovated and were placed on the market in May 2013. The claim for special damages should be denied.
36. In any event even if the warehouses were rented out at the rent claimed, those rent earnings would be gross earnings before deductions for loan repayments, taxes and others. The amounts claimed for damages should reflect the nett earnings.
37. I have also made observations earlier that both the defendants and plaintiff’s contributed equally to the unnecessary dispute. The plaintiff’s wife is not a party and cannot claim damages. On that basis both claims for general and punitive damages should be denied.
Observations
38. Before leaving this judgment I wish to draw the attention of the parties to Section 127 Property Law 1957, given what has transpired in these proceedings.
39. Easements were created specifically by the late Mr Meredith to accommodate his several businesses which have since vanished. He also disposed of his lands outright before his death. He obviously did not wish to rule from his grave how and what businesses his children should engage in.
40. Whether the parties wish to operate businesses (as the defendants have) or lease or sell (as the plaintiff intends to) the parties should consider whether the easements created by their late father in 1981 should be modified to suit their needs. And if the easements need to be modified, extinguished or otherwise, a section 127 application should be considered.
Orders
JUSTICE VAAI
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