Neighbours gain access rights to Hotchin's beachfront property

04:28, May 23 2014

Mark Hotchin's Waiheke Island neighbours have won a High Court scrap over access rights across his family trust's multimillion-dollar beachfront property.

Justice Graham Lang has upheld a caveat over the property, allowing Hotchin's neighbours to use the family's land to access their rebuilding site.

Justice Lang ruled the caveat would continue for another month.

The next step for the neighbours would be a court order specifically granting access rights based on rather than relying on a caveat.

The former Hanover Finance director's neighbours are effectively blocking the sale of his holiday home, valued at $8.8 million, unless the sale agreement includes a caveat to protect their right-of-way access, or easement, to their property.

Two of Hotchin's trusts, KA3 and KA4, named after his daughters, Kelly and Ashley, own Palm Beach properties in Matapana Rd worth as much as $13.3m.

KA3 sold an adjacent property, 34 Matapana Road, to Olo, a company owned by Stephen Casper, in September 2010.

Casper and associate Jo Richmond included a caveat with trustees in the initial sale agreement to ensure builders could access their property.

Casper's lawyer, Ben Russell, told the High Court in Auckland this month that the accessway was used by Casper and Richmond to move in, demolish and rebuild a holiday home.

The agreement was extended in April 2013 because there was no other practical alternative because of the steep terrain and property layout.

"Not only is this accessway the historical way [to enter 34 Matapana Rd], it is the only way," Russell said.

By late last year, Richmond was told that neither she nor Casper could use Hotchin's hideaway on a right-of-way basis.

Tension between Casper and Richmond and the property manager acting on behalf of the trusts, Jillian Alison, grew so bad that Alison blocked the only accessway to the building site with a padlocked gate and vehicles.

David Chisholm, QC, acting on behalf of Hotchin's trusts, said the case came down to an access agreement between two parties, rather than a legal right-of-way easement agreement, that was tied to the land regardless of who owned it.

He said the agreement lacked the specific definitions, such as driveway width, deviation points and boundaries, common to legal right-of-way contracts.

That KA3 had to point out access-rights agreements with another party to potential buyers proved the case was about agreements between people and not tied to the land, he said.

Although Chisholm said access could be to the south, not north, of Hotchin's tennis court, Justice Lang said that in practice there was only one defined and usable access to Casper's still-unfinished home.

Hotchin's property was advertised as having a five-bedroom family home of about 300 square metres, along with riparian rights, with about 100m of white-sand beach frontage, four boatsheds, a boat ramp and tennis court.

The KA3 trust is trying to sell the 4.5-hectare waterfront property.

Hanover Finance collapsed in 2008 owing investors $465m, with sister companies United Finance and Hanover Capital also failing, owing investors a collective $89m.