Botany Land Development Ltd v Pallister - [2016] NZHC 1419

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-3015 [2016] NZHC 1419

BETWEEN
BOTANY LAND DEVELOPMENT LTD

First Plaintiff

184 MARAETAI ROAD LTD Second Plaintiff

AND

MARGARET ELLEN PALLISTER, WENDY JUNE PALLISTER AND JULLIAN MARY MENZIES

First Defendant

AUCKLAND COUNCIL Second Defendant

PAUL KENNETH FOSTER of FLEMING FOSTER PALMER

First Third Party

BAYLEYS REAL ESTATE LTD Second Third Party

Hearing: 17 June 2016

Counsel:

N Campbell QC and R Butler for Plaintiff
A H Waalkens QC and P Fuller for First Defendants
B Upton for Second Defendant
M O Robertson for First Third Party
K Burkhart for Second Third Party

Judgment:

27 June 2016

JUDGMENT OF HEATH J

This judgment was delivered by me on 27 June 2016 at 4.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

BOTANY LAND DEVELOPMENT LTD v PALLISTER [2016] NZHC 1419 [27 June 2016]

Introduction

[1] This proceeding has been set down for trial over four weeks, commencing on

3 October 2016. It has a tortuous procedural history, some of which I need to recount. My task is to determine whether the scheduled hearing should be adjourned.

[2] I heard from counsel on 17 June 2016. During the course of that hearing, three possibilities were identified:

(a) The first is to retain the 3 October 2016 hearing time, subject to the possibility that the party (or parties) pressing for that to be done might be at risk of a wasted costs order should the question of adjournment need to be re-considered at that time.1

(b)The second is for liability issues to be determined in October, with all questions of relief deferred for consideration over a period starting 13
February 2017.

(c) The third is that the whole of the proceeding be adjourned to February

2017.

[3] Counsel asked for time to consider the options available to them, and to take instructions from their clients. I directed that a joint memorandum be filed on or before 24 June 2016, setting out the respective positions. I indicated that, in the event that they were unable to agree, I would determine (on the papers) whether an adjournment was necessary.

Background2

[4] On 5 November 2012, the trustees of the Margaret E Pallister Family Trust

(the trustees) entered into an agreement to sell land, situated at Maraetai, to Botany

1 This may be necessary as a result of an Environment Court hearing on 19 September 2016: see paras [14] and [15] below.
2 My summary of relevant background is drawn primarily from a judgment of Edwards J on an application in relation to admissibility of evidence: Botany Land Development Ltd v Pallister [2016] NZHC 1371.

Land Development Ltd (Botany). The purchase price was $2.35m. The agreement was conditional on Botany obtaining a subdivision consent from Auckland Council (the Council) by 10 May 2013.

[5] As a result of discussions between representatives of Botany and the Council in March and April 2013, Botany believed that a 2002 Concept Subdivision Consent (the concept consent)…

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.

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Details

Case: [2016] NZHC 1419
Decision Date: 27 June 2016

CaseChat Overview and Summary

Botany Land Development Ltd and 184 Maraetai Road Ltd brought proceedings against Margaret Ellen Pallister, Wendy June Pallister, and Jullian Mary Menzies, seeking specific performance of a contract for the sale of land at Maraetai, or damages in substitution. The defendants sought to have the proceedings adjourned pending the outcome of Environment Court proceedings. The court was required to decide whether the hearing should be adjourned. The court considered the procedural history of the case, including the Environment Court proceedings which had the potential to impact the substantive issues in the case. The court also considered the positions of the parties, with Botany and 184 Maraetai Road Ltd preferring to proceed with the hearing in October, while the other parties preferred an adjournment to February 2017.

The court found that, although the delay was regrettable, the risks inherent in forcing the parties to proceed in October, not long after the September hearing date in the Environment Court, required an adjournment. The court was also concerned that the proceeding might be part-heard if it proceeded in October. The court therefore decided to adjourn the hearing until February 2017, with a case management conference to be held before the adjournment to make any necessary directions. The court also made an order that any further application to adjourn would be scrutinised carefully, unless promoted by Botany and 184 Maraetai Road Ltd.

The court vacated the hearing scheduled for 3 October 2016 and directed a case management conference to be held before the court at 9am on the first available date after 3 October 2016. Costs on the adjournment application were reserved.

Orders