Auckland Council v Pallister - [2013] NZHC 2717

For a Court ready (fee required) version please follow this link

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-3411 [2013] NZHC 2717

UNDER THE Land Transfer Act 1952, section 145A

IN THE MATTER of registered Memorandum of
Encumbrance B783972.1 and caveat
9423851.1 on CT NA74C/895

BETWEEN AUCKLAND COUNCIL Applicant

AND MARGARET ELLEN PALLISTER, WENDY JUNE PALLISTER AND JILLIAN MARY MENZIES (AS TRUSTEES OF THE MARGARET E PALLISTER FAMILY TRUST)
First Respondents
BOTANY LAND DEVELOPMENT LIMITED
Second Respondent

Hearing: 8 October 2013

Appearances: B J Upton and T K Cunningham-Adams for applicant S O McAnally and B M Hajabri for first respondents R D Butler for second respondent

Judgment: 18 October 2013

JUDGMENT OF LANG J

[on application to sustain caveat]

This judgment was delivered by me on 18 October 2013 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

AUCKLAND COUNCIL v MARGARET ELLEN PALLISTER, WENDY JUNE PALLISTER AND JILLIAN MARY MENZIES (AS TRUSTEES OF THE MARGARET E PALLISTER FAMILY TRUST) [2013] NZHC
2717 [18 October 2013]

[1] This proceeding concerns a 1.2 hectare parcel of land situated at the eastern end of Umupuia Beach (“the land”). The land has been owned by members of the Duder family for more than 150 years.

[2] The land is currently owned by the first respondents, who are the trustees of the Margaret E Pallister Family Trust (“the trustees”). Mrs Margaret Pallister is one of the trustees, and is also a member of the Duder family.

[3] The trustees have entered into an unconditional agreement to sell the land to the second respondent, Botany Land Development Limited (“Botany Land”). Completion of the sale is being thwarted by the existence of a caveat registered against the title to the land by the Auckland Council (“the Council”).

[4] In this proceeding the Council seeks to sustain the caveat. It maintains that the trustees are obliged to offer to sell the land to the Council by virtue of an encumbrance registered against the title in February 1988. The Council seeks to sustain the caveat in order to protect its contractual right to receive that offer. The trustees and Botany Land want the caveat to be removed so that they can complete the existing agreement for sale and purchase.

Relevant principles

[5] The principles to be applied in applications such as this are well established through the decisions of the Court of Appeal in cases such as Sims v Lowe1 and Pacific Homes Limited v Consolidated Joineries Limited.2

[6] I propose to apply the following principles in reaching my decision:

a) The onus is on the caveator to demonstrate that it holds an interest in the land which is sufficient to support the caveat.

1 Sims v Lowe [1988] 1 NZLR 656 (CA).
2 Pacific Homes Ltd v Consolidated Joineries Ltd [1996] 2 NZLR 652 (CA).

b)The caveator must put forward a reasonably arguable case to support the interest it claims.

c) An order for the removal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Auckland Council v Pallister and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NZHC 2717
Decision Date: 18 October 2013

CaseChat Overview and Summary

In Auckland Council v Margaret Ellen Pallister, Wendy June Pallister and Jillian Mary Menzies (as Trustees of the Margaret E Pallister Family Trust), the High Court was asked to decide whether the Auckland Council's caveat over a parcel of land owned by members of the Duder family should be sustained. The Council's caveat prevents the completion of a sale of the land from the trustees of the Margaret E Pallister Family Trust to Botany Land Development Limited. The Council's caveat is supported by an encumbrance registered against the title of the land in 1988, which gives the Council a right of first refusal to purchase the land if it ceases to be occupied by a member of the Duder family. The trustees and Botany Land submitted that the Council was obliged to sell the land to them, as it had not expressed any interest in buying it, and because the Council's rights were already protected by the encumbrance. The Court held that the Council had a caveatable interest in the land. The Court found that the Council could arguably obtain an order for specific performance requiring the trustees to offer the land to it when the last member of the Duder family vacates the land. That interest was sufficient to support the caveat, even though the Council's registered interest under the encumbrance did not provide it with the same protection. The Court also found that the encumbrance had not been terminated, and declined to exercise its discretion to remove the caveat. The Court granted the Council's application to sustain the caveat, on the condition that the Council issue proceedings seeking specific performance of the encumbrance within one month of the judgment.

Orders