Bedford Developments Limited v Mowat - [2021] NZHC 1294

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000079

[2021] NZHC 1294

UNDER The Land Transfer Act 2017

IN THE MATTER

of an application that caveats not lapse

BETWEEN

BEDFORD DEVELOPMENTS LIMITED

First Applicant

AND

JUANITA ROSA MAREE O’CONNELL

Second Applicant

AND

MURRAY JOHN MOWAT

First Respondent

AND

ROGER SHAW SIMES

Second Respondent

Hearing: 19 May 2021

Appearances:

A J Forbes QC for Applicants

P F Whiteside QC for Respondents

Judgment:

3 June 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 3 June 2021 at 10.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BEDFORD DEVELOPMENTS LTD v MOWAT [2021] NZHC 1294 [3 June 2021]

[1] The applicants Bedford Developments Ltd (Bedford) and Juanita O’Connell (Ms O’Connell) apply for orders pursuant to ss 138 and 143 of the Land Transfer Act 2017 that caveats lodged by each of them against the title of a property at Unit 1, 483 Madras Street, Christchurch (Flat 1) not lapse. The application was made after the Registrar-General of Land had given notice to the applicants that the respondents, who hold a registered mortgage over Flat 1, had applied to lapse the caveats. The application is opposed by the respondents.

Background

[2] 483 Madras Street, Christchurch is a block of four flats sharing party walls. Each flat has its own title. The shared party walls are governed by a registered Easement Instrument 7538274.2 (the registered easement).

[3] The four flats were damaged in the February 2011 Canterbury earthquakes. The damage has not been repaired.

[4] Since 3 January 2013, Flat 1 has been owned by Simon Savill (Mr Savill). There is a registered mortgage over Flat 1 in favour of the respondents as executors of the estate of Peter Moore. The mortgage was registered on 22 August 2011.

[5] Mr Savill is also the director of Bedford. Bedford owns Flat 2. However, at the time of the February 2011 Canterbury earthquakes, Flat 2 was owned by Billie Christine Kaine and Hagley Trustees Ltd. The property was transferred to John Joseph Amirante and Tony William Martin on 19 October 2015 and then to Bedford on 31 August 2018.

[6] Flat 3 is owned by Edward Geoffrey Twiss and Latimer Trustees 2006 Ltd. They have taken no part in this proceeding.

[7]Ms O’Connell owns Flat 4.

[8] Mr Savill says that following the earthquakes, insurance assessors for the owners’ respective insurers concluded that the damage to the flats was irreparable and

they needed to be demolished and reinstated. He relies upon a report from Aurecon to Southern Response Earthquake Services of 3 February 2015 as evidence of this.

[9] On 18 August 2015, Mr Savill wrote to the then owners of Flat 2 giving notice of his intention to reinstate Flat 1 which required the demolition and rebuilding of the shared party wall and its foundations. If the owner of Flat 2 was not prepared to agree to…

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.

Continue reading Bedford Developments Limited v Mowat

Details

AGLC: Bedford Developments Limited v Mowat [2021] NZHC 1294
Case: [2021] NZHC 1294
Decision Date: 3 June 2021

CaseChat Overview and Summary

Bedford Developments Ltd and Juanita O’Connell applied for orders that their caveats against a property at 483 Madras Street, Christchurch not lapse. The applicants claimed an interest in the property as beneficiaries under an institutional constructive trust. The respondents, who held a registered mortgage over the property, opposed the application. The applicants argued that they had an interest in the property as beneficiaries under an institutional constructive trust arising from the registered easement, a partial arbitration, and an agreement to adopt a Shared Property Project. The Court considered the evidence and submissions of the parties. The Court found that the applicants had failed to establish an arguable case to the interest claimed in the caveats. The applicants had failed to establish the existence of an agreement to adopt a Shared Property Project, and any rights under such an agreement would not be derived from the registered easement. The applicants also failed to establish the existence of an institutional constructive trust. The applicants' interest was subject to the respondents' power of sale and would be extinguished upon registration of a transfer of title to the respondents' purchaser. The Court held that the applicants had failed to establish a caveatable interest in the property and ordered that the caveats lapse. The respondents were entitled to their costs.

Orders