Buchanan v Buchanan
[2025] NZHC 1112
•9 May 2025
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2018-412-70
[2025] NZHC 1112
BETWEEN NEIL ROBERT BUCHANAN and JULIE PATRICIA BUCHANAN and DOWNIE
STEWART TRUSTEE LIMITED as trustees of The Buchanan (NR & JP) Family TrustFirst Plaintiffs
AND
NEIL ROBERT BUCHANAN
Second Plaintiff
AND
GRAEME RUSSELL BUCHANAN and BARBARA JEAN BUCHANAN and OND
TRUSTEES LIMITED as trustees of the G R & B J Buchanan Family Trust
Third Plaintiff
AND
GRAEME RUSSELL BUCHANAN
Fourth Plaintiff
AND
LYNLEY BUCHANAN
Defendant
Hearing: 29 April 2025 Appearances:
T M Sefton for Plaintiffs
B A J Taylor for Defendant
Judgment:
9 May 2025
JUDGMENT OF ASSOCIATE JUDGE LESTER
BUCHANAN v BUCHANAN [2025] NZHC 1112 [9 May 2025]
[1] This proceeding involves a long-running and acrimonious family dispute concerning the subdivision of land owned by the parties. Essentially the dispute is between Neil, Graeme and Lynley Buchanan, who are siblings. Neil and Graeme, through their family trusts, along with Lynley, own a property at Beacon Point Road, Wanaka containing 1.1578 hectares, as tenants-in-common, each holding a one-third share.
[2] At a judicial settlement conference in May 2020, agreement was reached on the division of the property. The agreement was recorded in a settlement agreement. A Tomlin Order was made on 3 June 2020.
[3] Ten months later, the Tomlin Order had not been implemented. This resulted in Neil and Graeme applying to enforce the Tomlin Order on 11 February 2021 (the first enforcement order). That application was settled by the Tomlin Order and the settlement agreement being varied to require an attorney to be appointed by all parties to carry out the terms of the settlement agreement. That variation was confirmed by a further Tomlin Order.
[4] The agreement settling the first enforcement application provided that the attorney shall have the following powers:
(b)The Attorney shall have full autonomy and all necessary powers to carry out the terms of this Agreement, including (without limitation) signing all documents and instruments, making decisions, engaging contractors, incurring costs and creating easements and covenants over land. The Attorney’s appointment may be revoked jointly by all parties to this Agreement or by the Court on application by one or more of the parties, but not by any party unilaterally.
(c)The Attorney’s decisions shall bind the parties. The parties must immediately upon demand pay all costs incurred by the Attorney to carry out the terms of this Agreement in the shares provided for in this Agreement, including by making advance payment of costs to be incurred. The First Plaintiff, the Third Plaintiff and the Defendant must pay the Attorney’s fees as to a one third share each. The parties must sign all documents and instruments which the Attorney requests them to sign to carry out the terms of this Agreement.
(d)For the avoidance of doubt, the Attorney will keep the parties informed as to the progress of implementing this Agreement but does not need to consult with the parties or obtain their direction or agreement.
[5] It will be seen from the breadth of the above powers, which were ultimately conferred on the Attorney, that the intention was to ring-fence the parties from influencing the implementation of the subdivision of the jointly owned land.
[6] The Attorney’s powers are drafted in the broadest possible terms. The references to “this Agreement” reproduced at [4] above is to the original settlement terms. The terms reproduced at [4] were incorporated into the original settlement agreement.
[7] Other than meeting the costs of the subdivision exercise, the parties were to have no further role in the completion of the subdivision, which was to be carried out in accordance with the original agreement, subject to relatively minor variations also agreed as part of settlement of the first enforcement application. The Attorney was appointed on 3 May 2021, and set about taking steps to organise the subdivision. While the Attorney was not obliged to consult with the parties, nonetheless he kept them informed. Lynley appointed her own independent surveyor (Mr White) to assist her with understanding the subdivision process. Mr White prepared a five-page report which begins:
As discussed earlier today I have now completed the review of the draft resource consent application and engineering plans. This review has been undertaken in accordance with our agreed brief of 18 June 2021, specifically “... to ensure that the subdivision is completed in a manner that achieves the settlement agreements, is equitable to all parties, fair to you and undertaken in accordance with best professional practice.”
[8] Mr White’s review was positive and identified no major issues. Any issues raised by Mr White were described by him as minor. Mr White provided his report to the Attorney who, by email to all parties including to Lynley and Mr White, circulated the resource consent application and engineering plans along with the review. The Attorney said he would then give instructions for the resource consent application to be filed.
[9] So far, so good. The Attorney, in a series of letters, then foreshadowed the need for the parties to provide funds to be held in trust to meet the anticipated costs of the subdivision. It is not in dispute that the Attorney has the power to require funds to
be paid “up front”. The Attorney explained it was necessary to have funds on hand to be able to promptly meet payment claims once approved.
[10] On 4 October 2024, the surveyor, instructed by the Attorney, circulated a schedule of anticipated subdivision costs and called for the parties to pay their respective shares. Neil and Graeme have paid their share. Lynley has paid nothing.
[11] In addition, Lynley purported to unilaterally revoke the Attorney’s appointment. That is clearly of no effect given the terms of the agreement settling the first enforcement application (set out at [4] above). Accordingly, I find Lynley’s purported revocation of the Attorney’s appointment to be of no effect.
[12] With Lynley refusing to pay her share of the subdivision costs up front, the subdivision has not advanced. At the end of December 2024, Neil and Graeme applied for orders enforcing the Tomlin Order as varied, seeking in substance an order that Lynley pay her share of the subdivision costs. Costs and ancillary orders are also sought.
[13] As I will address below, the value of the sums disputed by Lynley from the payment schedule did not warrant the matter coming back before the Court. As Lynley only offered to pay her share if her claim on a disputed issue was accepted, Neil and Graeme were left with no choice but to seek the assistance of the Court. Lynley did not offer to pay the amounts other than those she disputed or to pay the disputed amounts on a without prejudice basis.
The disputed amounts
[14] The first issue raised by Lynley is the inclusion of an invoice for the removal of trees on the property. That invoice was for $10,800 plus GST. The costs schedule also added a five per cent contingency to all sums. It is common ground that by the time the schedule had been circulated, the tree invoice had already been paid. The inclusion of this amount was not a ground for not paying the balance of the schedule if it was otherwise payable. The fact it was common ground that the tree invoice had already been paid did not warrant the cost of a replacement schedule being completed.
To the extent that Lynley sought to rely on the inclusion of the tree removal invoice as grounds for not paying the invoice, that ground was not valid.
Cost of forming additional crossing point to Lynley’s property
[15] Under the original settlement agreement, Lynley’s lot (which is referred to as Lot 2 in the settlement agreement) was to be accessed by a new crossing from Minaret Ridge. The new crossing and driveway are shown on the plan annexed to the original settlement agreement. In addition to Lynley receiving Lot 2 and the access way from Minaret Ridge, the settlement agreement provided that Lynley would receive a strip of land by way of a boundary adjustment from Lot 1 which, under the subdivision, goes to Graeme. Of that strip of land, the agreement said:
3. The strip … shall be the minimum width required by the Queenstown Lakes District Council for the construction of an access way along the southern boundary from Beacon Point Road to Lot 2.
[16] Accordingly, under the settlement agreement, Lynley was receive a new access way from Minaret Ridge, as shown on the plan, along with the additional strip referred to. The plan does not show an access way from Beacon Point Road to the additional strip, that is, it does not show the need to form the crossing from Beacon Point Road to the additional strip of land to be added to Lynley’s lot by way of boundary adjustment.
[17] This issue is significant for two reasons. First, Lynley argues that the cost of forming the crossing from Beacon Point Road to the access strip should be shared equally by the parties as a cost of the subdivision and, secondly, she argues that the strip should not be 3.6 metres but 4 metres in width.
[18] Lynley has refused to pay her contribution to the subdivision unless the above points are agreed to by Neil and Graeme.
The Beacon Point vehicle crossing
[19] This issue arises because on 1 July 2020 — that is, within a month of the original Tomlin Order being made — there was correspondence about whether the resource consent application needed to include consent for the second access point to
Lynley’s property, being the access from Beacon Point Road. Lynley’s then-lawyer wrote to Neil and Graeme’s lawyer and said:
We understand the construction of the driveway will be Lyn’s responsibility, however, obtaining consent for the access point is required as part of the implementation of the settlement agreement which is the basis for the 3 lot subdivision going ahead.
[20] Lynley’s then-lawyer said that consent for the access point was required as that would dictate the width of the strip to be added to Lynley’s property as referred to above. Lynley’s then-lawyer said in the 1 July 2020 email:
Without the access way being defined as required by the settlement agreement, the property cannot be divided into the 3 lots, as the planners will not know where to draw the line along the southern boundary dividing Lots 1 and 2.
[21] In fact, the width of the access way was dictated by the terms of the settlement agreement already set out, that is, it was to be the minimum width required by the Council.
[22] On 7 July 2020, Neil and Graeme’s lawyer responded to the 1 July 2020 email and to the claim the planners would not know where to draw the line for the boundary adjustment stating: “This is not correct. The strip will be 3.6m wide as per QLDC standards.” The letter advised:
We are advised that the vehicle crossing can be considered and consented by QLDC as part of this process, but it will not be a condition of consent that it be formed as it is not required for access to Lot 2.
(emphasis added)
[23] The present dispute concerns the cost of construction of the additional crossing on Beacon Point Road for Lot 2, being $12,580 plus GST plus a five per cent contingency. As I said earlier, a dispute over this sum did not warrant the matter coming back to Court.
[24] The additional Lot 2 access is a matter entirely for the benefit of Lynley. The inclusion of a consent for the vehicle crossing in the resource consent application was essentially an indulgence to Lynley, as its inclusion in the application would only make a marginal difference to the cost of that application. Neil and Graeme’s lawyer was
clear, however, that the vehicle crossing was not to be a condition of the consent that the driveway be formed. That, in my view, makes it clear that the cost of formation was not to be a cost of obtaining the consent — all costs of the consent being shared. If Lynley wants the access way formed now, it is to be at her cost.
[25] With Neil and Graeme having issued High Court proceedings to obtain partition, and the parties having entered a very detailed settlement agreement, it is inherently unlikely that within a month they would have agreed to an amendment to the settlement agreement that would see them meeting two-thirds of the cost of forming the Beacon Point Road access way to Lynley’s lot when such was of no benefit to them.
[26] In any event this is not a matter that justified Lynley withholding payment. This is because the intent of the powers conferred on the Attorney amount to “pay now/argue later”. This is reinforced by the terms of the deed appointing the Attorney in which the parties to this proceeding are defined as the owners. Clause 5.2 of the deed of appointment says:
… If an Owner pays an amount which another Owner is liable for under the Settlement Agreement, then that amount is a debt due from the second mentioned Owner to the first mentioned Owner.
[27] While I suspect this was intended to cover the situation where one owner elects to pay an amount another owner has refused to pay, if it was ultimately held that my interpretation of the arrangement over the Beacon Point Road access way is wrong, Lynley would be entitled to recover the amount of overpayment from Neil and Graeme.
[28] The parties’ obligation to pay amounts called for payment by the Attorney, including advance payments is clear. The parties are bound to pay the amount called for. Again, the point of the parties conferring the powers on the Attorney was to prevent the very issue that has now arisen.
[29] I find that the issues raised by Lynley in respect of whether she is obliged to pay for the formation of the access way from Beacon Point Road to her property do not warrant her refusing to pay the amount claimed.
Width of the access strip
[30] As noted at paragraph [22], from 7 July 2020 Graeme and Neil’s position has been that the strip of land to be added to Lynley’s Lot 2 was to be 3.6 metres wide. Also, as already noted, Lynley instructed her own surveyor who carried out his detailed review of the consent application which records the access strip as being 3.6 metres. Mr White raised no issue with that width. Mr Taylor, the newly instructed lawyer for Lynley, argues that in fact the minimum width required by the Council at the time was 4 metres. Mr Taylor is in a minority of one in respect of that issue. Mr White did not share that view and obviously nor did the Council, as it issued its resource consent based on a width of 3.6 metres.
[31] In any event, it is not for Lynley to simply refuse to pay on this ground. If she considers the settlement agreement from 2020 has not been correctly implemented, that is, the minimum width should have been four metres, then the onus is on her to take steps to have that rectified, not to refuse to pay amounts she has committed to pay unless her view on a disputed issue is accepted.
[32] An alternative argument raised by Mr Taylor was that the reference to the minimum width required by the Council in the settlement agreement should be read as being the minimum width required by the Council “should Lot 2 be subdivided”. The theme of the argument was that all parties were aware that Lynley may wish to subdivide her lot in the future — the settlement agreement prohibiting subdivision until 2030.
[33] I do not accept this apparently new argument is a basis for Lynley not paying her share of the subdivision costs. The parties’ relationship in respect of the subdivision is governed by the settlement agreement as varied. If Lynley considers the settlement agreement contains an error, that is, it did not correctly record what was agreed and that it needs to be rectified, then the onus was on her to bring a rectification application. Alternatively, if Lynley considers there was some form of common mistake, or that Neil and Graeme took advantage of a mistake they knew she was labouring under, then again she should have sought relief on that basis. Again, it is not for Lynley to withhold payment unless Neil and Graeme accept her position.
Lynley, through Mr White, undertook a detailed review of the resource consent application which shows the access strip at 3.6 metres wide. No issue was taken with the width at that time. In my view, this will make it difficult for Lynley to argue that the consent should not have been sought on that basis.
[34] I accept the submission of Ms Sefton, counsel for the plaintiffs, that what was agreed and recorded in the settlement agreement is what has been consented. Those matters are not up for renegotiation.
Lapse of engineering acceptance
[35] A matter not expressly raised in the notice of opposition to this application, but in Lynley’s affidavit, is that the engineering acceptance for the subdivision has lapsed. This issue is addressed in detail in the affidavits in reply. Mr Taylor’s submissions did not attempt to expand on this issue as justifying Lynley’s non-payment. I need not address this matter further.
Is the estimate of costs in a reasonable form?
[36] Mr Taylor’s submissions accepted that the parties have an obligation to pay an estimate of costs in advance, but he submits they are entitled, at a bare minimum, to an accurate and professional accounting of the funds they are required to pay.
[37] No one disputes that. However, the accounting for the money paid in advance will come after the expenses have been incurred. There is no evidence and no submission by Mr Taylor that the costs estimate circulated in October 2024 was substantially inaccurate save for the tree issue which I have already addressed. The Attorney cannot call for payment of sums that fall outside the terms of the settlement agreement, but Mr Taylor does not submit that the amounts Lynley is required to pay in the estimated costs, are outside the settlement agreement.
Orders
[38] I am satisfied that Lynley has no defence to the requirement that she pay the amount contained in the costs schedule circulated in October 2024, which is
$94,897.25 less $4,347 (Lynley’s share of the tree removal invoice being $3,600 which
is a third of $10,800), plus GST and a five per cent contingency on the GST inclusive figure. The total payable by Lynley to the trust account established by the Attorney for holding the funds is $90,550.25. That amount is payable forthwith.
[39] Neil and Graeme sought an order reserving leave for them to bring proceedings for damages. I do not think such an order is required. If there has been a breach of the settlement agreement then Neil and Graeme are entitled to seek damages for that breach. That is distinct from seeking orders for performance of the settlement agreement pursuant to the Tomlin Order. The claims in this proceeding have been settled by way of the amended Tomlin Order and the parties did not address whether it is open to use this proceeding to file an amended statement of claim to seek damages for breach of the Tomlin Order, as opposed to seeking its enforcement. I do not address that issue further given the absence of argument on that point.
Costs
[40] Neil and Graeme seek indemnity costs in respect of having to bring this application. Counsel did not make submissions on costs. Ms Sefton’s written submissions sought that costs be ordered on an indemnity basis.
[41] I am satisfied that Lynley must pay indemnity costs in respect of this application. Again, Lynley did not offer to pay the amount in the schedule other than the $12,580 plus GST and contingency for the additional crossing point, or to offer to pay that amount on a without prejudice basis. The only offer she made was to pay the amount in the schedule if the access way was increased to four metres. Lynley has known that the access way was to be 3.6 metres from July 2020. She has taken no steps to advance any argument for any entitlement she may have to a four metre access way. Lynley’s claim that there was some underlying understanding between the parties that the access way would be wide enough to facilitate a subdivision of her property in the future had not been raised until this application.
[42] The position with the error with the tree invoice was recognised early on and, again, only concerned $4,347.
[43] The final paragraph of Mr Taylor’s submissions state: “The defendant is not prepared to advance the subdivision until these significant issues are dealt with”.
[44] That shows Lynley is defying the terms of the amended settlement agreement unless she gets her way. Lynley agreed to the subdivision being advanced by the Attorney. Again, the point of having the Attorney was to ring-fence the advancement of the subdivision from the animosity that exists between the parties, and to prevent the parties withholding co-operation as a bargaining tool to get their way on disputed issues. However, that is exactly the stance Lynley has continued to take. Her unreasonable position is confirmed by her counsel’s submissions. If costs cannot be agreed, Ms Sefton is to file within 10 working days a memorandum setting out the costs award sought with full supporting detail and copies of invoices to support her claim. Mr Taylor may reply within a further 10 working days. Both submissions are not to exceed five pages.
[45] For the avoidance of doubt, the plaintiffs are entitled to enforce the order that Lynley pay funds to the escrow trust account.
[46] Leave is reserved to the plaintiffs to apply further in respect of the enforcement of Lynley’s obligation to pay the above sum.
Associate Judge Lester
Solicitors:
Ross Dowling Marquet Griffin, Dunedin (for Plaintiffs)Wilkinson Rodgers Lawyers, Dunedin (for Defendant)
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