Epsom Woods Ltd v Waitakere Farms Ltd - [2019] NZHC 1374

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-454-109

[2019] NZHC 1374

BETWEEN
EPSOM WOODS LIMITED

Plaintiff

AND

WAITAKERE FARMS LIMITED

Defendant

Hearing: 17 June 2019

Appearances:

D Hayes for the Plaintiff

A A H Low for the Defendant

Judgment:

17 June 2019

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Hunwick Law Limited, Hamilton, for the Plaintiff Alexandra Low, Auckland, for the Defendant
Copy for:
David Hayes, Hamilton, for the Plaintiff

EPSOM WOODS LIMITED v WAITAKERE FARMS LIMITED [2019] NZHC 1374 [17 June 2019]

[1] On 14 March 2017, Waitakere Farms Ltd became the registered proprietor of Lot 1 DP 320387, a 51 hectare forestry lot at 131-149 Anzac Valley Road, Waitakere. It took title as nominee under an agreement for sale and purchase between Nags Head Horse Hotel Ltd as vendor and Addam Buttling as purchaser. Nags Head sold the property under its power of sale under a registered first mortgagee.

[2] Epsom Woods Ltd, the plaintiff, says that Waitakere Farms Ltd’s interest in the property is subject to interests not registered against the title. It says that it has rights under an agreement to lease dated 15 December 2009, under which it owns the trees on the land, and the property is subject to a residential tenancy agreement that will not expire until 31 July 2040. In this proceeding, Epsom Woods Ltd seeks orders and declarations upholding the interests which it alleges. These interests are said to have arisen years before Waitakere Farms Ltd became the registered proprietor. Epsom Woods Ltd does not say that Waitakere Farms Ltd granted ownership of the trees, or that it entered into a residential tenancy agreement. The agreement as to the trees goes back to December 2009 and the residential tenancy agreement is said to have been made in July 2010.

[3] For reasons I will give, I reject the case for Epsom Woods Ltd. I do so on the application for summary judgment by Waitakere Farms Ltd. The short point is that Waitakere Farms Ltd took title under s 105 of the Land Transfer Act 1952. On becoming registered proprietor from a mortgagee exercising a power of sale, the title was cleared of all interests against the property except those expressly authorised under s 105. Waitakere Farms Ltd has pressed for wider grounds for me to find in its favour. It has applied not only for summary judgment but also for strike-out, alleging that this proceeding is an abuse of process. It has also applied for security for costs. In my view, the case can be determined on the summary judgment application. While orders might be made in its favour on the other matters, they are not essential to my decision.

Background

[4] Waitakere Farms Ltd is a single purpose company. It was incorporated to take title to the property in Anzac Valley Road. The director and shareholder of Waitakere Farms Ltd is Mr Joe Duncan. He…

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: [2019] NZHC 1374
Decision Date: 17 June 2019

CaseChat Overview and Summary

Epsom Woods Limited commenced proceedings against Waitakere Farms Limited, seeking to establish that Waitakere Farms' interest in a 51-hectare forestry lot at Anzac Valley Road, Waitakere, was subject to interests not registered against the title. Epsom Woods claimed rights under an agreement to lease dated December 2009, under which it owned the trees on the land, and a residential tenancy agreement that would not expire until July 2040. Waitakere Farms applied for summary judgment, arguing that it had taken title under s 105 of the Land Transfer Act 1952, which cleared all interests against the property except those expressly authorised by the section. The court considered whether Epsom Woods' claims were arguable. It concluded that Waitakere Farms had satisfied the test for summary judgment, as the claims could not succeed. The court dismissed the proceeding and ordered Epsom Woods to pay Waitakere Farms' costs.

Orders