Botany Land Development Ltd v Pallister - [2016] NZHC 1371

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2014-404-003015

[2016] NZHC 1371

BETWEEN
BOTANY LAND DEVELOPMENT LIMITED
First Plaintiff

184 MARAETAI ROAD LIMITED

Second Plaintiff

AND

MARGARET ELLEN PALLISTER, WENDY JANE PALLISTER AND JULIAN MARY MENZIES

First Defendant

AUCKLAND COUNCIL
Second Defendant

PAUL KENNETH FOSTER of FLEMING FOSTER PALMER
First Third Party

BAYLEYS REAL ESTATE LIMITED

Second Third Party

Hearing: 17 May 2016

Counsel:

R D Butler for the Plaintiffs

A H Waalkens QC and P Fuller for the First Defendants B J Upton and J S Learner for the Second Defendant No Appearance of, or on Behalf of the First Third Party K M Burkhart for the Second Third Party

Judgment:

23 June 2016

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 23 June 2016 at 11.00 am, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BOTANY LAND DEVELOPMENT LTD and ANOR v PALLISTER and ORS [2016] NZHC 1371 [23 June 2016]

Introduction

[1] The plaintiffs (Botany) and the second defendant (Council) are each purchasers under two separate sale and purchase agreements for land owned by the first defendants (trustees). The land is held in two titles located at the eastern end of Umupuia beach in Auckland (land). The key issue in dispute concerns which of those two agreements takes priority.

[2] A four week trial has been set down to commence on 3 October 2016. The parties have exchanged briefs of evidence and reply briefs of evidence. Botany and the second third party (Bayleys) object to expert evidence to be called on behalf of the trustees. They seek a ruling that the evidence to which they object is inadmissible. The trustees oppose both applications.

[3] By way of separate application the trustees seek an order that the Council provide an undertaking as to damages in support of its caveat over one of the titles to the land. The trustees say that the undertaking is necessary to protect them against a claim for penalty interest should Botany succeed on its claim for specific performance of its agreement. The Council opposes such an order.

Background

[4] In 2011, Mrs Margaret Pallister on behalf of the trustees decided to sell the land and approached the Council to see whether it would be interested in buying it. It is alleged that in December 2011, the Council told Mrs Pallister that she should put the land on the market which is what she proceeded to do.

[5] The trustees then entered into a sale and purchase agreement with Botany on 5 November 2012 (Botany agreement). The price for the property was $2.35m. The agreement was conditional on Botany obtaining a subdivision consent by 10 May 2013.

[6] In March and April 2013 Botany met with the Council in relation to obtaining a subdivision consent for the property. The Council told Botany that a 2002 concept subdivision consent for the property was still active and enabled the property to be subdivided. As a result, on…

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 1371
Decision Date: 23 June 2016

CaseChat Overview and Summary

Botany Land Development Ltd and another party, 184 Maraetai Road Ltd, brought proceedings against Margaret Ellen Pallister, Wendy Jane Pallister, Julian Mary Menzies, Auckland Council, and others, to determine which of two agreements for the sale of land should take priority. Botany and the Council were each purchasers under separate sale and purchase agreements for land owned by the trustees. The key issue in dispute was which of those two agreements took priority. Botany and the second third party, Bayleys Real Estate Limited, objected to expert evidence to be called on behalf of the trustees. They sought a ruling that the evidence to which they objected was inadmissible. The trustees opposed both applications. By way of a separate application, the trustees sought an order that the Council provide an undertaking as to damages in support of its caveat over one of the titles to the land. The Council opposed such an order. The court dismissed Botany's application as to the admissibility of evidence. Bayleys' application was granted in part with paragraphs 67 to 73 of Mr Nolan's brief ruled inadmissible at trial. The remainder of Bayleys' application was dismissed. The trustees' application for an undertaking as to damages in support of the caveat was dismissed.

Orders