[1] This case involves a boundary dispute. Part of Murray and Shona Thompson’s garage and driveway encroaches on Herbert Keil’s land. Mr Keil, in the District Court in Napier, sought to bring the encroachment to an end. He wanted the Thompsons to remove those portions of the garage and driveway encroaching on his land and to be able to erect a boundary fence on the legal boundary between the two properties. The Thompsons retaliated with an application for relief under s 129 of the Property Law Act 1952. Judge Rea found in the Thompsons’ favour. He ordered, among other things, that the land encroached upon, both under the garage and under the driveway, be vested in the Thompsons under s 129.
[2] Mr Keil appealed. One of the grounds of appeal was that, whatever the position may be with respect to the garage, s 129 did not confer jurisdiction to vest the driveway in the Thompsons. That was because, so Mr Wenley argued for Mr Keil, a driveway was not “a building” for the purposes of s 129 and the section permitted vesting only of land upon which a building actually sat. Lang J rejected that argument. He held the District Court did have jurisdiction to vest the driveway in the Thompsons: [2007] NZHC 2108; (2007) 8 NZCPR 759 at [57]- [71]. His Honour nonetheless set aside the order vesting the driveway in the Thompsons and the orders relating to compensation and costs: at [104]. He directed Judge Rea to reconsider whether a vesting order was appropriate given certain considerations he set out in his reasons for judgment. He upheld the vesting order in respect of the land under the garage.
[3] Mr Keil sought leave to appeal against some parts of Lang J’s judgment. One of the questions of law which he wanted to bring to this court was the question whether Lang J had been right in holding the District Court had jurisdiction to vest ownership of the driveway in the Thompsons. Cooper J, who heard this application, declined it: [2008] NZHC 82; (2008) 9 NZCPR 257. Mr Keil did not seek special leave to appeal from this court after his rebuff in the High Court.
[4] The matter then returned in 2008 to the District Court with respect to the specific matters Lang J had ordered be reconsidered. Judge Rea considered the alternative to vesting the driveway which Lang J had suggested. He did not consider it a realistic alternative and confirmed his earlier order vesting the driveway in the Thompsons. He also reconsidered other matters, none of which is currently relevant.
[5] Mr Keil appealed. This appeal was heard by Andrews J. She dismissed it: HC NAP CIV-2008-441-294 8 August 2008. Mr Wenley sought to reargue before Andrews J the question of jurisdiction to make a vesting order relating to the driveway. Andrews J held that that issue had been finally determined between these parties by Lang J’s decision, from which there had been no appeal. Accordingly, the jurisdiction issue was res judicata and issue estoppel applied: at [33].
[6] Mr Keil sought leave to appeal from the High Court. That application was heard by Potter J. She declined leave to appeal: 23 December 2008. Mr Wenley submitted to Potter J that there were three questions of law worthy of consideration by this court. Two of them related to the jurisdictional question whether a vesting order could be made in respect of the driveway. Potter J agreed with Andrews J that that question was res judicata: at [18]. It was not an issue which arose as this matter moved up the court hierarchy for the second time.
[7] Mr Keil now seeks special leave to appeal from us. There is only one question he seeks to bring: that is the jurisdictional question whether a vesting order could be made in respect of the driveway.

A tale of two Acts: which applies?

[8] Before we determine whether that question is worthy of further debate in this court, we need to consider whether this case continues to be governed by s 129 of the Property Law Act 1952. Mr Wenley submits s 129 remains the applicable law, but Mr Murray, for the Thompsons, contends to the contrary. He submits that, as from 1 January 2008, the date on which the new Property Law Act 2007 came into force, the Thompsons’ application for relief, in so far as it remained undetermined, fell to be considered and determined under the corresponding sections of the new Act (ss 321-325). This is a point of some moment, as the new Act, if it applies, has decisively resolved the issue of whether the court can make an order vesting “land reasonably required as curtilage [or] for access to [a wrongly placed] structure”: it can. See the definition of “land” in s 321. Further, in any event, under the new Act, a “driveway” is itself “a structure”, so that, if wrongly placed so as to encroach on a neighbour’s land, the driveway owner could apply for relief under s 322 with respect to the driveway in its own right. See the definition of “structure” in s 4. Mr Wenley, correctly, conceded that his jurisdictional argument would not apply under the 2007 Act.
[9] Which Act therefore applied after 1 January 2008 to the extant part of the Thompsons’ application for relief? This is a surprisingly tricky question. It turns on the correct interpretation of s 367 of the Property Law Act 2007 and ss 17 and 18 of the Interpretation Act 1999. Both Mr Wenley’s and Mr Murray’s submissions on this topic, so far as they went, have merit. In the end, we have decided not to resolve the question. This is partly because we have had the benefit of only limited argument on the point. More importantly, however, we have decided the question does not need resolution because, whether the old Act or the new Act applies, we do not consider this an appropriate case for a further appeal. But the reasons for forming that view differ according to whether the old Act or the new Act applies.

If the new Act applies

[10] If the new Act applied to these proceedings after 1 January 2008, then s 129 did not apply to the rehearing before Judge Rea in 2008. It would be quite inappropriate now to grant special leave to determine the scope of the old s 129, as that is no longer the governing law in this case. On this approach, it is obvious that the application for special leave to appeal would have to be dismissed.
[11] It is true that Judge Rea on the rehearing continued to act under the old Act. Even if he was wrong so to do, Mr Wenley did not suggest that gave rise to any issue worthy of our consideration. That is because the new Act has not made any substantive change to the way in which the statutory discretion is to be exercised.

If the old Act continues to apply

[12] Even if the old Act continues to apply, as Mr Wenley submitted, we would decline special leave for three reasons. First, the proposed question would have insufficient public or private importance to outweigh the cost and delay of a further appeal: see Waller v Hider [1998] 1 NZLR 412 at 413 (CA) and Downer Construction (New Zealand) Limited v Silverfield Developments Limited [2008] 2 NZLR 591 at [33]-[37] (CA). As stated above, s 129 of the 1952 Act has now been repealed. The replacement sections of the 2007 Act have clearly resolved the interpretation issue Mr Wenley seeks to argue with respect to s 129. There would be no public benefit now in this court pronouncing on the scope of the repealed s 129.
[13] Secondly, the proposed jurisdictional argument appears to be weak. Judge Rea and Lang J in determining the “jurisdiction” question followed clear High Court authority, namely Fisher J’s decision in Briggs v Currie (1994) 2 NZConvC 191,837. The correctness and good sense of that decision is perhaps indicated by its effective codification in the new definition of “land” in s 321 of the 2007 Act.
[14] Thirdly, this litigation has become completely disproportionate to the issues at stake. There have now been two substantive hearings in the District Court. There have been four substantive hearings in the High Court. And that does not count interlocutory hearings, recall applications, costs hearings and case management conferences. It is time for this litigation to come to an end.
[15] We are mindful of Mr Wenley’s impassioned plea that Judge Rea’s decision has led to a gross injustice to Mr Keil, as the order vesting the driveway in the Thompsons prevents Mr Keil from enjoying vehicular access to the rear of his property. It may be such access is now prevented, but that is a factual issue which has now been ventilated on four different occasions. Quite apart from the financial consequences to the parties of yet a further appeal, it is not appropriate for us on a second appeal to reassess factual or evaluative questions of that kind.
[16] We have not mentioned as a ground for declining special leave the question of res judicata or issue estoppel, a factor which weighed heavily with Potter J when she declined leave. It is certainly arguable that Lang J’s decision on the “jurisdictional” decision is “final” as between these parties, with the consequence that it is now too late for Mr Keil to seek to raise the issue again in this court. This is, however, a very difficult question, which we do not consider we need to resolve. We are quite satisfied for the other three reasons we have given that special leave to appeal should not be granted. In the circumstances, we find it unnecessary to pronounce on whether there might be a fourth reason.
[17] Whichever Act now applies, therefore, this is not an appropriate case for further ventilation in this court.

Solicitors:
Willis Toomey Robinson, Napier, for Applicant
Langley Twigg, Napier, for Respondents

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