Karmarkar v Rajsic

• Jurisdiction: New Zealand
• Court: High Court
• Judge: Anderson J
• Judgment Date: 21 April 2026
• Neutral Citation: [2026] NZHC 1018
• Docket Number: CIV-2025-404-001822

Between

Madhav Hari Karmarkar

Appellant

and

Branko Rajsic

First Respondent

Herbert Stanley Hunte and Julie Pearl Hunte

Second Respondents

Xioliang Yang and Yting Zhang

Third Respondents

YVT Management Limited

Fourth Respondent

Haixuan Liu and Huijun Cao

Fifth Respondents

[2026] NZHC 1018

CIV-2025-404-001822

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Property easements — appeal against decision declining application for contributions to widening and upgrading of shared driveway vehicular right of way — required work — implied statutory rights — subdivision consent requiring widening and upgrading of shared driveway — relevance of prior misuse/breach of the easement — discretion as to contribution — Property Law Act 2007

The issues were: whether the proposed driveway works were “required work” under s313(1)(c) PLA, whether the works related only to the shared driveway and whether the respondents should contribute to the costs of the works.

The Court held the correct approach was to assess whether the work was “required work” as a threshold issue and then assess whether contribution orders should be made. At the time of the DC decision the proposed works were unlawful because the consent had lapsed. However, following the EC extension, the proposed works were no longer unlawful and that could not be ignored on appeal. The easements were created upon subdivision of the land to provide for residential development and the context was consistent with an intention that the access support intensification of the land for residential use. Confining access and the right to establish and maintain a driveway to the position when the initial accessway was constructed would make the use of the easement and property by the respective owners ineffective. The rights implied by sch 5 PLA (covenants implied in grants of vehicular rights of way) encompassed the right to establish a wider driveway and upgrade the existing driveway if reasonably required for the reasonable use of the land. The upgrading required by the Council as a condition of subdivision consent should be permitted. The quotation and scope of works related only to the driveway works and sufficiently specified the nature and scope of the required work.

On discretion, relevant factors included that the development was likely to be highly profitable; some respondents had limited financial resources; the present driveway was modest but was adequate and in reasonable functional condition; the respondents neither wanted nor needed the works; occupiers of K's property had made disproportionate use of the driveway which was indicative of disproportionate use of the upgraded driveway in the future; the respondents would gain amenity and possible uplift in property value from an upgraded driveway. The discretion under s313 PLA was remedial and not intended to be applied punitively. Because the works were being initiated by K for his benefit and were resisted by the respondents, only a modest contribution should be required of them.

The appeal was allowed. The respondents should collectively contribute NZ $30,000 ($6,000 each) representing between 10–15 per cent of the total cost.

Appearances:

Appellant in person

No appearance for First Respondent

R Ewen for Second and Fourth Respondents

D L C Liu for Third and Fifth Respondents

JUDGMENT OF Anderson J

Table of Contents

	Para No
The appeal	[1]
The background to the vehicular rights of way	[5]
The parties	[6]
Relevant terms of the vehicular rights of way	[9]
Statutory context	[15]
District Court judgment	[22]
Legal principles on appeal	[25]
Approach to this appeal and summary of decision	[28]
Required works	[35]
Are the works required under the terms of the easement?	[35]
Nature and extent of the required works	[46]
“Reasonable and proper cost of any required work”	[57]
Reasonable contribution to cost of required works	[60]
Contributions sought by Mr Karmarkar	[61]
Submissions for Mr Karmarkar	[64]
Decision on discretion	[79]
Result and orders	[83]

The appeal

1 The appellant, Madhav Hari Karmarkar, owns a property at 37A Hayr Road. This shares a driveway with the respondents' properties at 33, 35A, 35B, 35C and 37 Hayr Road. The existing driveway is a pair of concrete strips.

2 In August 2019, Mr Karmarkar applied for a resource consent to subdivide and construct four dwellings on his property. 1 Auckland Council granted his application subject to a condition requiring him to widen and upgrade the shared driveway so that the proposed development met passing and access requirements associated with additional vehicles (the Proposed Works).

3 Mr Karmarkar appeals the decision of Judge D Sharp in the District Court declining his application under s 313 of the Property Law Act 2007 (PLA) for contributions from the respondents totalling 83.3 per cent of the expected costs of these works.

4 At the time of the District Court trial and decision, Mr Karmarkar's resource consent had lapsed. Subsequently, on 19 August 2025, he obtained an order from the Environment Court extending the time for exercise of the consent to 2 August 2027. 2

The background to the vehicular rights of way

5 On initial subdivision and sale of the land at Hayr Rd in 1951, three lots were created. These correspond to properties at Nos 33, 35 and 37 Hayr Road respectively. Each lot owned a strip of land accessing Hayr Rd subject to reciprocal rights of way in favour of the other lots. 3 The three adjacent strips created a total width of 6.3 metres providing for a shared driveway. Since the initial subdivision into three lots the property at No 35 has been further subdivided (now 35A, 35B and 35C) and the property at No 37 has been further subdivided into Nos 37 and 37A.

The parties

6 Mr Karmarkar's company, Jayashree Ltd, acquired No 37A after No 37 had been subdivided and before the subdivision of No 35. He transferred the land into his personal ownership in 2024.

7 The respondents are the owners of the other relevant properties as follows:

• (a) The first respondent, Mr Rajsic, owns No 33. He took no part in the District Court proceeding nor the appeal.

• (b) The second respondents, the Huntes, owned No 35 when it was subdivided into three lots in 2013. The Huntes' evidence was that a developer was behind this subdivision. They had an arrangement with him by which they transferred the two newly created lots (which he developed and sold) in exchange for building their dwelling.

• (c) The third and fourth respondents are the owners of No 35B and 35C.

• (d) The fifth respondents are the owners of No 37, which is adjacent to Mr Karmarkar's property at the end of the driveway.

8 Attached to this judgment as Annexure A is a plan identifying the position of the driveway relative to the parties' properties.

Relevant terms of the vehicular rights of way

9 The terms of the reciprocal rights of way give each owner: 4

… a free perpetual right of way ingress, egress, and regress on horseback or on foot and with or without implements, motor or other vehicles of every description loaded or unloaded by night as well as by day in over and upon that portion of [the servient land] and any part thereof for the purpose of giving access to and from [the dominant land] and to and from the public road.

10 And: 5

… TOGETHER WITH right of way over that portion of the [servient land] AND SUBJECT TO right of way over that part of the [dominant land] in favour of the [servient land] and to right of way over that part of the [dominant land] in favour of the [servient land].

11 There are also various other easements associated with services and with the inter-relationship between No 37 and 37A.

12 The bare terms of the easement documents are supplemented by terms implied into all vehicular rights of way by s 297 and sch 5 of the PLA.

13 By cl 1(1) of sch 5:

The grantee and the grantor have (in common with one another) the right to go, pass, and re-pass over and along the land over which the right of way is granted.

14 By cl 2 of sch 5:

The owners and occupiers of the land for the benefit of which, and the land over which, the right of way is granted have the following rights against one another:

(a) the right to establish a driveway on the land over which the right of way is granted, and to make necessary repairs to any existing driveway on it, and to carry out any necessary maintenance or upkeep, altering if necessary the state of that land; and

…

(d) the right to a reasonable contribution towards the cost of establishment, maintenance, upkeep, and repair of the driveway to an appropriate standard…

Statutory context

15 The statutory context is Part 5 Subpart 5 of the PLA. Section 308 provides for a person entitled to a positive covenant benefitting land to serve a notice on a person bound by the covenant calling on them to “undertake, or to contribute to the cost of undertaking, work required to be done under the terms of the covenant.”

16 The requirements for such a notice are then set out in s 309. These include that the notice specifies the work to be undertaken, identifies the relevant instrument or other source of the positive covenant, and identifies the person(s) who it is proposed will share the cost of the work and the shares to be borne by each.

17 There is provision in the statute for those served who do not agree with the proposal in the notice to serve a cross-notice. 6

18 The statute contemplates the parties seeking to settle the question of undertaking and contributing to the cost of the proposed work following the...