Cassiny Ltd v Hounslow Holdings Ltd - [2021] NZHC 3039

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1992

[2021] NZHC 3039

UNDER Land Transfer Act 2017

IN THE MATTER

of an application to sustain caveats on land

BETWEEN

CASSINY LIMITED

First Plaintiff/Applicant

CASSINY LANDS LIMITED
Second Plaintiff/Applicant

AND

HOUNSLOW HOLDINGS LIMITED

Defendant/Respondent

Hearing: 9 November 2021

Appearances:

K J Sheehan for Plaintiffs/Applicants

K G Davenport QC and A M Cameron for Defendants/Respondents

Judgment:

10 November 2021

JUDGMENT OF VENNING J

This judgment was delivered by me on 10 November 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Kate Sheehan Lawyers, Auckland
Sellars & Co, Helensville

Counsel: K G Davenport QC/A M Cameron, Auckland

CASSINY LTD v HOUNSLOW HOLDINGS LTD [2021] NZHC 3039 [10 November 2021]

[1] Cassiny Limited (Cassiny) and Cassiny Lands Limited (CLL) lodged caveats against land belonging to Hounslow Holdings Limited (Hounslow). Hounslow applied to lapse the caveats on 1 October 2021. Cassiny and CLL apply to the Court for orders that the caveats not lapse. The application is opposed by Hounslow.

[2] The caveats each claim an estate or interest in Hounslow’s land pursuant to an agreement for sale and purchase dated 3 December 2020 between Hounslow as vendor and, in one case, Cassiny as purchaser, and in the other, CLL as purchaser.

[3] The background to the issues between the parties is set out in a judgment of Woolford J in related proceedings in which Cassiny sought injunctive orders to prevent Hounslow from relying on a settlement notice it had issued.1

[4] On 3 December 2020 Cassiny entered into an agreement to purchase bare land at Helensville from Hounslow. Cassiny intended to subdivide the land into about 28 or 30 lots and on-sell them. Settlement date was six months from the date the agreement became unconditional.

[5] The agreement became unconditional on 25 February 2021. Settlement was therefore due on 25 August 2021. Cassiny did not settle. Hounslow issued a settlement notice on 3 September 2021 requiring settlement on or before 21 September 2021.

[6] CLL lodged its caveat on 25 August 2021. Then, on 20 September 2021 Cassiny lodged its caveat. Apparently CLL became involved as it was to be nominated by Cassiny as the purchaser. Ultimately however, that did not occur.

[7] On 20 September 2021 Cassiny filed proceedings against Hounslow and sought an injunction. It claimed the settlement notice was invalid. It also alleged there was an implied term that the agreement was conditional on resource consent from Auckland Council. Finally, Cassiny sought rectification of the agreements to reflect the implied term. Cassiny sought orders suspending the settlement notice and

1 Cassiny Ltd v Hounslow Holdings Ltd [2021] NZHC 2528.

deferring the settlement date until further order of the Court or agreement between the parties.

[8] Woolford J dismissed Cassiny’s application for injunction on 24 September 2021. The Judge noted Cassiny’s statement of claim raised three causes of action. First, it…

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: [2021] NZHC 3039
Decision Date: 10 November 2021

CaseChat Overview and Summary

The High Court of New Zealand was asked to determine whether Cassiny Limited and Cassiny Lands Limited could sustain their caveats on a property belonging to Hounslow Holdings Limited. The caveats were lodged to protect their interests under an agreement for sale and purchase of the property, dated 3 December 2020. The primary legal issues were whether the caveats could be sustained following the cancellation of the agreement for sale and purchase, and whether the caveats correctly identified the basis of their claimed interest in the property. The Court was also required to consider whether the caveats could be sustained on the basis of a purchaser's lien following the cancellation of the agreement.

The Court found that the caveats could not be sustained because the agreement for sale and purchase had been cancelled by Hounslow due to Cassiny's failure to settle. The Court held that a purchaser under an agreement for sale and purchase of land has a caveatable interest in the land, but this interest does not survive the cancellation of the agreement. Furthermore, the Court found that the caveats were incorrectly based on the agreement for sale and purchase, and did not identify any other basis for the claimed interest in the property. The Court also noted that if a purchaser's lien was to be relied upon to sustain the caveat, it would need to be based on a different claim, such as the return of a deposit.

The Court declined to make any interim orders sustaining the caveats, and ordered that the caveats lapse. The Court also awarded costs to Hounslow on a 2B basis for all steps taken in opposition to the application, including the hearing.

Orders