Eastlight Asset Trading no.1 Limited v Robinson
[2017] NZHC 434
•14 March 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2017-485-92 [2017] NZHC 434
IN THE MATTER of s 145A of the Land Transfer Act 1952 BETWEEN
EASTLIGHT ASSET TRADING NO. 1
LIMITED Applicant
AND
JOHN LEONARD ROBINSON AND LESLEY ELIZEBETH ROBINSON Respondents
Hearing: 7 March 2017 Appearances:
J D Dallas for the applicant
K P Sullivan for the respondentsJudgment:
14 March 2017
JUDGMENT OF ASSOCIATE JUDGE SMITH
[1] The applicant (Eastlight) applies for an order under s 145A of the Land Transfer Act 1952 (the LTA) that a caveat which it has lodged on the titles to certain land owned by the respondents (Mr and Mrs Robinson) in Island Bay, Wellington (the Property), not lapse.
[2] Mr and Mrs Robinson have filed a notice of opposition and affidavits in opposition, and Eastlight has filed one affidavit in reply.
Background
[3] In mid-2016 Mr and Mrs Robinson decided to sell the Property. They had been living in the Property for approximately twenty years, but they are now in their
seventies, and they wanted to downsize to a more suitable residence.
EASTLIGHT ASSET TRADING NO. 1 LIMITED v ROBINSON [2017] NZHC 434 [14 March 2017]
[4] Mr and Mrs Robinson entered into a conditional agreement for sale and purchase of the Property, on 28 September 2016.
[5] The purchasers of the Property were Mr Alexander Smith and
Ms Vivienne Bartlett (together, “the purchasers”).
[6] The contract became unconditional on 3 October 2016, and the deposit was paid on 5 October 2016. Settlement was due on 14 December 2016.
[7] In preparation for the settlement scheduled for 14 December 2016, the Robinsons’ solicitors had set up the necessary e-dealing which would be required to transfer the Property to the purchasers. The e-dealing contained details of the property being transferred, and the names of the Robinsons as vendors and Mr Smith and Ms Bartlett as purchasers.
[8] At the time they set up the e-dealing, the Robinsons’ solicitors missed the fact that the Property was comprised in two Unique Identifiers. This appears to have arisen because the section on page one of the agreement for sale and purchase (which had been completed without legal assistance), in which the Property was described, referred only to one Unique Identifier for the Property – WN15B/250. In fact, copies of the two certificates of title were annexed to the form of agreement, and were initialled by the parties. Also, the deposited plan references on page one of the agreement correctly described the land designated by both Unique Identifiers, and the street address in the agreement was sufficient to cover both pieces of land. At the hearing, it was common ground that the agreement did provide for the sale and purchase of the land in both Unique Identifiers.
[9] The day before the scheduled settlement, Mr Bruce Young, solicitor for the purchasers, sent an email to the solicitors for Mr and Mrs Robinson advising that Mr Smith had been adjudicated bankrupt that day. Mr Young advised that the purchasers would therefore be unable to settle the agreement the following day (although attempts were being made to resolve the issue).
[10] On the intended settlement date, the Robinsons’ solicitors requested an update from Mr Young. They discovered that Mr Young had set up a new e-dealing (ie additional to the e-dealing which had been signed and certified by the Robinsons’ solicitor) and they noted, apparently for the first time, that the Property was comprised in two Unique Identifiers (the second being Unique Identifier WN31C/953).
[11] When the Robinsons’ solicitors realised that Mr Young had added the additional title to the e-dealing, they confirmed for themselves that its inclusion was appropriate. They then arranged for the re-signing and certifying of the e-dealing, so that the transaction would include the land in both titles. The Robinsons were in a position to settle on 14 December, but Mr Young’s clients were not.
[12] The parties’ rights on default were set out a clause 11 of the agreement for sale and purchase. Clause 11.1 permitted the party not in default to serve on the defaulting party a settlement notice. The agreement did not specify the form of the notice, although failure to comply with the settlement notice within a period of twelve working days conferred on the non-defaulting party a number of rights, including the right to cancel (cl 11.4(1)(b)).
[13] When settlement did not take place on the scheduled day, Mr and Mrs Robinson instructed their solicitors to issue a settlement notice. The settlement notice, served on Mr Young on 16 December 2016, was in the following form.
The Vendor HEREBY GIVES NOTICE to the Purchaser that:
(1) Pursuant to an Agreement for Sale and Purchase of Real Estate dated
28 September 2016 (“the Agreement”) the Vendor agreed to sell to the Purchaser the property being the underlying fee simple land contained in the certificate of title WN15B/250 and located at
131 Eden Street, Island Bay, Wellington (“the Property”).
(2) The Agreement required settlement to take place on Wednesday
14th December 2016.
(3) On Wednesday 14th of December 2016 the Vendor called for the
Purchaser to settle pursuant to the Agreement.
(4) The Vendor is in all material respects ready, able and willing to proceed to settle pursuant to the Agreement.
(5) The Purchaser has failed to settle.
(6) The Purchaser is hereby required to settle the purchase of the Property within twelve (12) working days after the date of the service of this notice (excluding the day of service), time being of the essence.
(7) If the Purchaser does not comply with the terms of this Settlement Notice the Vendor may exercise such of the Vendor’s remedies at law or in equity as the Vendor may decide pursuant to the Agreement.
DATED at Wellington this 16th day of December 2016
[14] It will be noted that the settlement notice referred only to certificate of title
WN15B/250.
[15] In an affidavit sworn in opposition to the application, Ms Townsley, who was a principal in the firm of solicitors acting for the Robinsons, stated that the settlement notice was in the standard form used by her firm. It referred to the sale and purchase agreement by reference to its date, the parties, the address of the property, and the Unique Identifier contained within the agreement itself. Her evidence was that the standard agreement for sale and purchase used in the industry does not prescribe any form of settlement notice, but that she has issued and received numerous settlement notices in the course of her professional practice in similar form to the settlement notice issued in this case. She emphasised that the settlement notice was consistent with the agreement for sale and purchase, in that it made reference to the one title shown in the agreement.
[16] When the purchasers failed to settle within the period of twelve working days prescribed by the settlement notice, Mr and Mrs Robinson caused a cancellation notice to be served on Mr Young in his capacity as solicitor for the purchasers. That occurred on 17 January 2017.
[17] Mr Young responded to the cancellation notice immediately, by email to the Robinsons’ solicitors. He said that he had re-checked the settlement notice, and considered that it was “deficient and a nullity”, as there were two titles involved, not just the one referred to in the settlement notice. He advised that his clients were
reaching agreement about funding and the mechanics of settlement, and that they wished to complete settlement as soon as they could.
[18] Mr Young’s 17 January 2017 email came as a surprise to the Robinsons and their solicitors. The alleged deficiency in the settlement notice had not been raised earlier.
[19] Nine days elapsed before Mr Young sent a further email to the Robinsons’ solicitors. On 26 January 2017 Mr Young notified the Robinsons’ solicitors that Ms Bartlett’s interest under the sale and purchase agreement had been assigned to Eastlight. Mr Young also advised that he had been instructed to register a caveat against the titles to the Property.
[20] A copy of the assignment from Ms Bartlett to Eastlight was produced by Mr Kooiman, a director of Eastlight, in his affidavit sworn in support of the application. The document, in the form of a deed of assignment dated 25 January
2017, provided for the absolute assignment of Ms Bartlett’s rights and interest in the
agreement to Eastlight.
[21] The Robinsons’ solicitors emailed Mr Young immediately, questioning the basis for the caveat, and asking for a copy of the assignment document. They also enquired if the Official Assignee had approved the assignment on behalf of Mr Smith.
[22] The Official Assignee was in touch with the Robinsons’ solicitors that same day – on 26 January 2017, solicitors acting for the Official Assignee asked for a copy of the agreement for sale and purchase, and confirmation as to whether a deposit had been paid. However the Official Assignee apparently came to the view that any interest Mr Smith had in the agreement was not worth pursuing – a formal notice of disclaimer under s 117 of the Insolvency Act 2006 was issued by the Official Assignee on 21 February 2017.
[23] The caveat was lodged on 27 January 2017, and accepted for registration on
31 January 2017. The estate or interest claimed in the caveat is described as follows:
As assignee under a Deed of Assignment dated 25 January 2017 whereby the caveator acquired the rights and interests of Vivienne Bartlett, as purchaser under an unconditional agreement for sale and purchase dated
28 September 2016 with the registered proprietors John Leonard Robinson and Lesley Elizabeth Robinson as vendors.
[24] Mr and Mrs Robinson lodged a notice challenging the caveat on 31 January
2017. Notice of this application was duly sent by Land Information NZ to Eastlight, with a deemed service date of 3 February 2017. Eastlight filed its application for an order that the caveat not lapse on 16 February 2016.
[25] An unusual feature of the case is that the building erected on the Property spans the boundary between the land in Unique Identifers WN15B/250 and WN31C/953. Realistically, that means that the pieces of land designated by the two Unique Identifiers had to be sold together, although the Unique Identifiers did not themselves contain any encumbrance or other notice having the effect that a transfer of one piece of land could not be registered in the absence of a transfer of the other.
[26] Mr and Mrs Robinson have entered into a second agreement to sell the Property (which is conditional on Eastlight’s caveat being removed). And in the expectation that funds would be available from the sale of the Property they have entered into an agreement to purchase a property in Waikanae. While they have been able to negotiate an extension of time for settlement of the Waikanae purchase until the end of March 2017, they have no guarantee that any further extension will be granted if they are unable to settle with the vendor on that date.
The application and the notice of opposition
[27] In its application, Eastlight refers to the assignment of Ms Bartlett’s interest in the agreement to Eastlight, and asserts that the agreement remains in force. It contends that the Robinsons’ settlement notice cannot be deemed to relate to the agreement for sale and purchase, because the settlement notice was particular in its description of a specific property, and that property is not the property referred to in the agreement between the Robinsons and the purchasers. Eastlight contends that the settlement notice was of no effect.
[28] Eastlight also contended in its notice of application that the proported cancellation was a “disposition” of property, as described in s 345(2) of the Property Law Act 2007 (the PLA). Being a disposition of an equitable interest in land, the cancellation was required to be specifically recorded in writing pursuant to s 25(1)(b) of the PLA. The settlement notice did not include the disposition of the land designated by the second Unique Identifier, and was therefore invalid with regard to that land.
[29] Eastlight says that it is fair and equitable that its caveat should remain on the titles to the Property.
[30] In their notice of opposition, Mr and Mrs Robinson contend that the failure to refer to one additional title reference in the settlement notice was not misleading, and did not cause any confusion. They say that the settlement notice was valid, and that the subsequent cancellation of the agreement was also valid. They do not take any point about the validity of the assignment of Ms Bartlett’s interest in the agreement to Eastlight, beyond pleading that the Agreement was validly cancelled and that Eastlight (as the purported assignee of a cancelled contract) acquired no caveatable interest in the Property.
[31] Mr and Mrs Robinson say that Eastlight has no caveatable interest in the Property, and that the application should accordingly be dismissed. They ask that costs be awarded jointly and severally against Eastlight, Ms Bartlett as the intending purchaser, and Mr Young, for placing the caveat over the Property when there was no caveatable interest.
The law relating to applications for orders that caveats do not lapse
[32] Section 137 of the LTA materially provides:
Caveat against dealings with land under Act
(1)Any person may lodge with the Registrar a caveat in the prescribed form against dealings in any land or estate or interest under this Act if the person—
(a) claims to be entitled to, or to be beneficially interested in, the land or estate or interest by virtue of any unregistered agreement or other instrument or transmission, or of any trust expressed or implied, or otherwise;
[33] The court’s task in dealing with an application such as the present is to determine whether the caveator has a reasonably arguable case to support the interest claimed. The onus rests on the applicant.1
[34] The court’s approach was helpfully summarised by Associate Judge Bell in
Official Assignee v Menzies & Others, in the following terms:2
[4] In an application to sustain a caveat, the onus is on the caveator to show that he has a caveatable interest. An application to sustain a caveat is a summary procedure which is quite unsuitable for determining disputed questions of fact. Accordingly, there will be a decision not to sustain a caveat only if it is patently clear that the caveat cannot be maintained either because there was no valid ground for lodging the caveat in the first place, or that a valid ground no longer exists, or that no useful purpose will be served by maintaining the caveat. The patent clarity will not exist where the caveator has a reasonably arguable case in support of the interest claimed. The interest claimed by the caveator must be a proprietary interest in land. It may an equitable interest.
The issues to be decided
[35] The following is the only issue to be determined:
(1)Is it reasonably arguable for Eastlight that the settlement notice issued by Mr and Mrs Robinson on 16 December 2016 was so defective (because of the failure to refer to the land designated by the second Unique Identifer) as to be a nullity?
[36] If that issue is answered in the affirmative, the caveat should be sustained. If it is answered in the negative, the Robinsons’ cancellation notice would have been effective to bring the agreement to an end, and Ms Bartlett could not have had any
equitable interest in the Property when she purported to assign her interest to
1 Sims v Lowe [1988] 1 NZLR 656 (CA) at 660.
2 Official Assignee v Menzies HC Auckland CIV-2010-404-005457, 14 February 2011.
Eastlight on 25 January 2017. In that situation Eastlight could not have acquired any interest in the Property sufficient to support a caveat.
The parties’ submissions
[37] For Eastlight, Mr Dallas submits that the effect of the settlement notice was to require the purchasers to settle the purchase of just one of the two pieces of land which were the subject of the agreement for sale and purchase. Mr Dallas points in particular to the very specific description of the Property in para 1 of the settlement notice, with its reference to “the underlying fee simple contained in certificate of title WN15B/250 …”. There was no mention of the additional lot (the land in Unique Identifier WN31C/953) that the purchasers had also contracted to purchase.
[38] Mr Dallas further submits that there is no impediment in the Land Transfer system which would prevent a vendor transferring just one of two titles to a purchaser. As he put it in his written submissions: “Even if that is not practical or morally correct in this case it is particularly important that the purchasers’ solicitors be cautious as to what they are dealing with”. The agreement was in respect of two estates, and it could not be cancelled in respect of one of those estates because there was no agreement between the parties in respect of just one of the estates.
[39] Mr Dallas submits that the Court of Appeal decision in Robertson Enterprises Ltd v Cope 3 is distinguishable. In that case, the settlement notice was given in broad terms, but clearly related to the estates being dealt with. The relevant notice referred to the contract between the parties, which in that case included all the estates and the specific terms. By contrast, the settlement notice in this case specifically described the Property to which the contract was said to relate, but the description did not
include one of the estates. The result is that the agreement referred to in the settlement notice did not exist, and the settlement notice was therefore a nullity. As the issue of a valid settlement notice was a pre-requisite to any valid cancellation under clause 11 of the agreement for sale and purchase, the Robinsons’ later purported cancellation of the agreement was equally ineffective. Ms Bartlett
retained an equitable interest in the Property which was capable of being assigned to
3 Robertson Enterprises Ltd v Cope [1989] 3 NZLR 391 (CA).
Eastlight, and which was so assigned. The agreement for sale and purchase is still on foot, and a further (valid) settlement notice would have to be issued before it could be cancelled.
[40] Mr Dallas referred in his written submissions to ss 345(2) and 25(1)(b) of the Property Law Act 2007 (the PLA), contending that s 25 of the PLA requires that dispositions of interests in land (including equitable interests) must be in writing. He then endeavoured to call in aid s 345(2)(d) of the PLA, in which a specific definition of “disposition” for the purposes of Part 6, subpart 6, of the PLA4 includes “the release, discharge, surrender, forfeiture, or abandonment, at law or in equity, of … a contract … or of a right power estate or interest in or over any property…”. The
argument appeared to be that the settlement notice, or perhaps the Robinsons’ subsequent cancellation notice, had to be in writing because it was a “disposition” as defined in s 345(2)(d), to which s 25(1) of the PLA applied. Mr Dallas did not pursue this argument further in his oral submissions.
[41] For Mr and Mrs Robinson, Mr Sullivan submits that there are no disputed issues of fact or credibility which might prevent the court from finding that Eastlight has no arguable case for an equitable interest in the Property. There are no issues over the service of the settlement notice, and it is common ground that the purchasers did not comply with the notice. Mr Smith and/or Ms Bartlett were simply unable to settle. He submits that there is only one significant legal issue, and that is whether or not the settlement notice was so defective as to render the subsequent cancellation invalid.
[42] Mr Sullivan submits that the settlement notice was entirely consistent with the agreement for sale and purchase, making exact reference to the terms the agreement. There could have been no confusion as to which agreement was at risk of being cancelled if settlement did not take place within the twelve working day
period prescribed in the notice.
4 This subpart of the PLA is generally concerned with setting aside dispositions that prejudice creditors.
[43] Mr Sullivan relies on Robertson Enterprises Ltd v Cope,5 where Cooke P stated that the court was “satisfied that a reasonable vendor in the appellant’s shoes would have understood from [the settlement notice] that he was being called upon to settle as required by the agreement”. The question in this case is therefore whether reasonable purchasers in the position of Mr Smith and Ms Bartlett would have understood that they were being called upon to settle as required by the agreement for sale and purchase.
[44] Mr Sullivan also refers to New Zealand Land Law, where the learned authors state (in respect of the predecessor of clause 11.4 of the agreement for sale and purchase):6
[The clause] itself provides much of the relevant detail as to time and consequences. Such detail does not necessarily, therefore, have to be incorporated in the notice itself. A clear statement that the communication is a settlement notice in the terms of [the clause in the agreement providing for the issue of settlement notices] should be sufficient at least when served on the solicitors for the recipient.
[45] Mr Sullivan relies also on the evidence of Ms Townsley, the Robinsons’ solicitor, that the form of notice and its content were in line with the industry standard, there being no prescribed form. He characterises Eastlight’s challenge to the notice as being “a technical breach as to the title reference”, and submits that in fact there was no possibility that Mr Smith and Ms Bartlett, who were represented by an experienced solicitor, could have misunderstood the meaning of the notice. The complaint that one title reference was missing is based on an assumption that the agreement had both title references. Mr Sullivan submits that the same title reference was missing from the agreement, with the result that the settlement notice and the agreement were in fact the same. All other words of the settlement notice were clear: the purchasers were in default and were provided with the twelve working day timeframe prescribed in clause 11 of the agreement to remedy that default. If the default was not remedied, the parties all knew that the Robinsons
would have the rights prescribed by clause 11.4 (including the right to cancel).
5 Above n 3.
6 Tom Bennion, and others, New Zealand Land Law (2nd ed, Brookers, Wellington, 2009) at 1245.
[46] Mr Sullivan refers to a number of authorities which he says illustrate the court’s firm approach to purchasers claiming an interest in property where settlement has not occurred. He cites Westpac v Bhana, a judgment of Master Lang (as he then was), Johal v Stariha, and Brewerton v Townsend, in support of the general proposition that not every mistake will vitiate a notice. The mistake must be
material (referring to the decision of Harrison J in Johal v Stariha).7
[47] In Westpac v Bhana, the problem was that the amount required to settle was overstated in the settlement notice by over $100,000. Master Lang noted that the purpose of a settlement notice is to put the purchaser on notice that it must complete the purchase of the property within the twelve working day period prescribed in the standard form of agreement for sale and purchase. In default, the purchaser runs the risk that the vendor will cancel the contract or look to other remedies under the contract. His Honour considered that the emphasis was on the requirement to complete the purchase, rather than the amount which the purchaser was required to
pay to achieve that result.8 The amount which the purchaser was required to pay to
complete the purchase was governed by the contract itself, and not by the settlement notice. The settlement notice in Bhana would not have been defective if it had made no reference at all to the amount Mr Bhana was required to pay to complete: that was not an essential component of the notice.9
Discussion and conclusions
[48] I accept that the question is that identified by the Court of Appeal in Robertson Enterprises Ltd v Cope, namely whether a reasonable person in the shoes of Mr Smith and Ms Bartlett would have understood from the settlement notice that they were being called upon to settle as required by the agreement.
[49] I am satisfied that a reasonable person in the purchasers’ shoes in this case would not have been in any doubt as to what the settlement notice was calling upon them to do – they were required to settle “pursuant to the agreement”. That is the
expression which was used in paras 3 and 4 of the settlement notice, in which the
7 Westpac v Bhana (2003) 5 NZCPR 73 (HC), Johal v Stariha (2005) 6 NZCPR 230 (HC),
Brewerton v Townsend (2002) 4 NZ ConvC 193,605 (HC).
8 Westpac v Bhana, above n 7, at [27].
9 At [28].
Robinsons described the requirement they had made on 14 December 2016, and their own readiness and willingness to perform. There was no question which agreement Mr Smith and Ms Bartlett were being called upon to settle: there was only one possible agreement that might have been referred to (the agreement for sale and purchase dated 28 September 2016 referred to in para 1 of the settlement notice). To similar effect, para 7 of the settlement notice made it clear that if Mr Smith and Ms Bartlett failed to settle, the Robinsons would be entitled to exercise such legal or equitable remedies as they might decide “pursuant to the Agreement”.
[50] There was of course a mistake in the legal description of the Property as set out in para 1 of the settlement notice, the mistake reflecting the same mistake which had been made on page one of the agreement for sale and purchase itself. But as the court noted in Milne v Wrightson’s Seeds Ltd 10, there is nothing in the evidence in this case to suggest that the misdescription of the Property in the settlement notice affected anyone’s decision making. Mr Smith and Ms Bartlett were represented by
an experienced solicitor in Mr Young, and it is evident that he was well aware by the settlement date that the land being sold was comprised in two titles. Mr Young amended the e-dealing which had been created by the Robinsons’ solicitors to add the second title, and he did not suggest in his affidavit that he was in any way confused or misled by the settlement notice into thinking that the Robinsons were calling on his clients to settle in respect of just one of the two pieces of land which were to be transferred under the Agreement.
[51] The uncontradicted evidence is that Mr Young deleted the e-dealing he had earlier created, and amended the e-dealing which the Robinsons’ solicitors had created, to add to the second title. As far as the evidence shows, the latest e-dealing for the transaction in the Landonline Workspace was an e-dealing which referred to both Unique Identifiers, which had been re-signed and certified by the Robinsons’ solicitors on the scheduled settlement day. (While no settlement could occur that day because of Mr Smith’s bankruptcy, Ms Townsley explains that that step was taken to ensure that the Robinsons would be in a position to say that they themselves were ready, willing and able to settle the transaction on 14 December 2016.)
[52] Ms Townsley’s evidence is that the signing and certifying of the e-dealing is an essential step in the settlement process, and without it a party cannot be ready, willing and able to settle. Mr Young did not challenge that evidence in his affidavit. I accordingly infer that when Mr Young received the settlement notice on
16 December 2016, he would have understood that the Robinsons’ stated willingness and readiness to settle on 14 December 2016, “pursuant to the Agreement”, was a readiness and willingness to settle on the basis of the last known e-dealing which was in place on the settlement date, namely the amended e-dealing which referred to both Unique Identifiers.
[53] Consistent with that view, there was nothing said by the Robinsons’ solicitors to Mr Young before the settlement notice was issued on 16 December 2016 by way of challenge to the amendment Mr Young had made to the e-dealing, adding the second title, and Mr Young made no challenge to the form of the settlement notice until after he received the cancellation notice on 17 January 2017.
[54] A further factor which must have made the Robinsons’ intention in issuing the settlement notice clear, is that the building on the Property spans, or straddles, the boundary between the two pieces of land. In those circumstances it would have made no sense for the Robinsons to have called for settlement of the transaction in respect of just one of the two pieces of land. Any reasonable purchasers in the position of Mr Smith and Ms Bartlett, assisted by an experienced conveyancing solicitor, would have quickly understood that the requirement was to settle “pursuant to the Agreement”, and that what the parties would be required to do to effect settlement would be governed by the Agreement, unaffected by the mistake in the description of the Property in the settlement notice.
[55] As the court noted in Johal v Stariha11, not every mistake will vitiate a notice, and I am satisfied that the mistaken description of the Property in the settlement notice in this case did not have that effect. The fact that a notice might
contain a misdescription of the property sold does not necessarily render the notice a nullity12, and in this case there is no suggestion that anyone was misled or deceived by the mistake in the notice. If the test is whether reasonable recipients of the notice would have understood what the notice required of them, that test is clearly met. I do not consider it reasonably arguable for Eastlight that the settlement notice was a nullity (or that the cancellation notice issued on its expiry was a nullity).
[56] For completeness, I add that I do not see anything in ss 25 or 345 of the PLA which might have assisted Eastlight. The settlement notice itself did not effect any disposition of an interest in land, and there has been no separate challenge to the form or effectiveness of the cancellation notice which was later given by the Robinsons.
[57] The result, then, is that the Agreement was properly cancelled before the
25 January 2017 assignment of Ms Bartlett’s interest to Eastlight. She therefore had no interest to assign at the date of that deed, and Eastlight accordingly acquired no caveatable interest in the Property.
[58] The application for an order that the caveat not lapse is therefore dismissed.
[59] Mr Sullivan asked for an order for increased costs if his clients’ opposition was successful. He also sought costs against Ms Bartlett and Mr Young, in addition to Eastlight.
[60] At the hearing, Mr Sullivan appeared to base the second application only on the fact that his clients do not know whether Eastlight would be good for any costs order which might be made be made against it. In my view that does not provide a
sufficient basis for an order for costs against a non-party. Nor have the Robinsons
12 623 Rocks Road v Lawrence HC Nelson CIV-2008-442-126, 25 June 2008. As in this case, Associate Judge Christiansen found that at all material times both parties were well aware of the actual title numbers of the property which was subject to the agreement (para [35] of the judgment).
put forward any sufficient basis for an award of increased costs. Accordingly, I make an order for costs to the Robinsons on a 2B basis, plus disbursements as fixed by the Registrar.
Associate Judge Smith
Solicitors:
WCM Legal, Wellington for the defendants
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