Why Revisit Sutton v O'Kane? The Tricky Trio: Supervening Fraud, the In Personam Claim and Landlocked Land
The focus of this paper is on the maturing of the in personam claim, and its relationship with the concepts of supervening fraud and landlocked land. The paper concentrates solely on the enforcement of the claim against the class of registered owners and uses two decisions concerning a sub‐set of that class — the access‐blocking owner — to tease out the principles. The claim will supersede supervening fraud, a principle that may be neither 'necessary [nor] consistent with the statute'. The circumstances in which claims in personam are, and will be, recognised are wide. This paper highlights well‐established known legal or equitable causes of action to which the unconscionability of a registered owner may attach. The claim's relationship with ss 326‐331 of the Property Law Act 2007 adds a further dimension to the debate. So how do the parties fare under the three concepts? Both the Suttons and the McGraths clear the hurdles of supervening fraud and the in personam claim. Had they resided in New Zealand, the McGraths would probably have successfully defended a landlocked land application from the Campbells. However, Mr O'Kane would have dealt his winning card and, pursuant to ss 326‐330 of the Property Law Act 2007, his access would have been reinstated. A tricky trio indeed!