Ford v Ensor
[2015] NZHC 1459
•26 June 2015
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CIV-2014-443-000084 [2015] NZHC 1459
BETWEEN MARK WAYNE FORD
Plaintiff
AND
CHARLES RICHARD ENSOR Defendant
Hearing: 12 May 2015 Appearances:
E Telle for the Applicant
R Wilson for the RespondentJudgment:
26 June 2015
JUDGMENT OF ASSOCIATE JUDGE SARGISSON
This judgment was delivered by me on 26 June 2015 at 2.15 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date.......................................
Solicitors:
Neilsons, Auckland
R Vosseler, Stratford
R Wilson, Auckland
MARK WAYNE FORD v CHARLES RICHARD ENSOR [2015] NZHC 1459 [26 June 2015]
Summary
[1] This is an originating application made under s 145A of the Land Transfer Act 1952 that Mr Ford’s caveat over Mr Ensor’s land not lapse. Mr Ford also seeks costs. Mr Ensor opposes both applications and seeks costs of his own. He also seeks, if Mr Ford is successful, that costs be reserved pending anticipated substantive proceedings. There is already in place an interim order that the caveat not lapse.
[2] Mr Ford argues that he has caveatable interests in the land by virtue of: (a) a Timber Cutting Rights Deed dated 20 December 2008; and
(b) a Farm Lease dated 18 July 2009
[3] Mr Ford says Mr Ensor has wrongly prevented him from exercising his rights and/or registering these interests. Mr Ensor says that the caveat is deficient; that the interests Mr Ford claims cannot sustain a caveat; and that there are, in any case, discretionary reasons why the Court should not allow the caveat to stand. These include, but are not limited to, his need to uplift the title for a new lot for which he has subdivision approval and which he has sold to a Mr Matthews.
Background
[4] The background to this case involves Mr Ensor’s land, a deed, and an
unregistered farm lease.
[5] The land is rural land located at 1373 Upper Mangaehu Road, RD22, Stratford 4392. It is described as Pahautuhia 2 BLK XIII and BLK XIV Mahoe Survey District, land area being 1,762.2818 hectares.
[6] The deed was signed on 20 December 2008. It is for a term of 10 years with a right of renewal for a further 10 years. It gives Mr Ford the right to enter the land in order to cut and mill native Rimu, Matai, Miro, Tawa and Kahikatea timber on the land; the land is described in a schedule to the deed. In exchange for the rights to this timber, Mr Ford is required to pay royalties. There are various conditions relating to
which kinds of trees Mr Ford is allowed to cut and mill, and the condition he is to leave the land in. Property in the timber is not to pass to Mr Ford until it is separated from the land and the applicable fees and charges are paid. Mr Ford also has the right to trap and kill noxious animals on the land. Materially, clause 23 of the deed provides that Mr Ensor is not under any duty to take steps to enable the interests created by the deed to be registered against the title to the land, but it permits Mr Ford to do so himself. The scheme of the deed indicates that the same should apply in respect of permits: Mr Ford will have the responsibility of applying for them, and Mr Ensor will let him.
[7] The lease was signed on 18 July 2009 and is for a term of ten years. It provides that Mr Ford is, among other things, to:
(a) Pay rent; three quarters of the rates of the demised premises (the land described in the Schedule to the lease); pay insurance; pay for utilities; maintain the buildings and the land (including keeping the land free of noxious weeds and pests); comply with applicable statutes, regulations and codes of practice.
(b)Have the right to quiet enjoyment; have the landlord pay land taxes and rates except as otherwise provided; have the insurance money he pays applied to the demised premises if required; have the exclusive right to mill native timber on the demised premises in exchange for royalties calculated in accordance with the 20 December 2008 deed; and be entitled to register the lease.
[8] There is correspondence in Mr Ford’s affidavit relating to Mr Ford’s attempts to register the profit à prendre for logging and apply for a permit from the Ministry of Agriculture and Fisheries (now the Ministry of Primary Industries) in order to do the logging. Essentially, Mr Ford says that, in breach of his obligations under the deed and the lease, Mr Ensor has applied for permits which exclude Mr Ford’s ability to gain the required permits and take the timber from the land.
[9] Mr Ford has also provided an affidavit from a contractor, Douglas Wood, who says that Mr Ensor offered him the right to do logging on the land, and showed him a sustainable forest management permit from the Ministry of Agriculture and Fisheries. He apparently accepted the offer, but when he found out that resource consent was required to carry out the logging, he decided not to take any further
steps to log the trees.1
[10] Since the deed and the lease were signed, part of the land has been subdivided and the evidence is that it has been sold to a Mr Matthews. Though Mr Ensor’s evidence on the sale is sketchy, counsel for Mr Ensor indicated at the hearing that settlement of the sale is delayed, pending deposit of the survey plan and issue of the title for the new lot. Mr Ford’s caveat apparently remains the only impediment to the issue of title. That was part of the chain of events which led to the lodgement of the caveat. The caveat states:
Pursuant to an unregistered Memorandum of Lease dated 18 July 2009 between the Caveator as Lessee and the Registered Proprietor as Lessor and further pursuant to an unregistered Memorandum of Easement Instrument dated 20 December 2008 incorporating milling and trapping land covenants between the Caveator as Grantee and the Registered Proprietor as Grantor.
Following the hearing, counsel for Mr Ford has filed a memorandum advising that Mr Ford would be willing to withdraw the caveat over the proposed new lot to enable the new title to be issued, so that the transfer of the new lot to Mr Matthews can be registered free of the caveat.
Standard to be applied
[11] The application is made under section 145A, which provides:
145A Early lapse of caveat against dealings
(1) The registered proprietor of any estate or interest in the land protected by a caveat against dealings (other than a caveat lodged by the Registrar) may apply to the Registrar for the caveat to lapse.
(2) The Registrar must give the caveator notice of an application under subsection (1).
(3) The caveat lapses with the close of the prescribed period after the date
on which the notice under subsection (2) is given unless—
1 Mr Wood also says that he believes he was actively deceived by Mr Ensor but this evidence was disallowed with the consent of both counsel.
(a) the caveator has earlier given to the Registrar notice that an application for an order to the contrary has been made to the High Court; and
(b) an order to that effect has been made and served on the Registrar within the prescribed period after the date on which the notice under paragraph (a) is given to the Registrar.
[12] On an application of this type, it is unnecessary to finally decide the parties’
rights, and indeed where there is a factual dispute it would be inappropriate to do so.2
The Court need only decide whether the caveator has a reasonably arguable case for the claimed interest in land. The same principles apply under s 145A as under ss 145 and 143.3 Those are:4
(a)The burden of establishing that the applicant has a reasonably arguable case for the interest claimed is upon the caveator;
(b)The caveator must show an entitlement to, or beneficial interest in, the estate referred to in the caveat by virtue of an unregistered agreement or an instrument or transmission, or of any trust expressed or implied: s 137 Land Transfer Act
1952;
(c)The summary procedure involved in an application of this nature is wholly unsuitable for the determination of disputed questions of fact — an order for removal of the caveat will not be made unless it is clear that the caveat cannot be maintained either because there was no valid ground for lodging it or that such valid ground as then existed no longer does so;
(d)When an applicant has discharged the burden upon the applicant, there remains a discretion as to whether to remove the caveat, which will be exercised cautiously;
(e)The Court has jurisdiction to impose conditions when making orders.
[13] The discretion to refuse to sustain a caveat applies if there would be no practical benefit to sustaining it,5 a residual discretion which the authors of
LexisNexis’ Principles of Real Property Law explain as being an exceptional case
2 See Botany Land Development Ltd v Auckland Council [2014] NZCA 61; Eng Mee Yong v Letchumanan [1980] AC 331 (PC); New Zealand Limousin Cattle Breeders Society Inc v Robertson [1984] 1 NZLR 41 (CA).
3 See Rebecca Hofmann (ed) Land Law (online looseleaf ed, Westlaw) at [2.9]; Raiser
Developments Ltd v Trefoil Properties Ltd [2008] NZCA 73.
4 Philpott v Noble Investments Ltd [2012] NZHC 1431 at [36]; see also Raiser Developments Ltd v Trefoil Properties Ltd [2008] NZCA 73; Sims v Lowe [1988] 1 NZLR 656 at 660 (CA); Macrae v Rapana HC Auckland M633/94 17 June 1994 at 3.
5 Orams Marine (Auckland) Ltd v Ports of Auckland Ltd (1994) 6 TCLR 88 (CA) at 92.
where the balance of convenience remains relevant.6 It is clear that the residual discretion is available under ss 145 and 145A even though those sections, unlike s 143, do not explicitly provide that the Court “may make… such order… as to the court seems meet”.7 The onus of showing that the residual discretion should be applied lies with the party challenging the caveat, because it is only available where the Court is completely satisfied that removing the caveat will not affect the caveator’s interests.8
Issues
[14] In broad terms, the issues that require determination are:
(a) whether, in law, Mr Ford’s interest in the land is capable of sustaining
a caveat; and
(b)whether the caveat sufficiently describes the interest now claimed; andif so, whether there may be a practical benefit in sustaining the caveat.
[15] I proceed on the basis that if those issues of law are resolved in Mr Ford’s
favour, then he will have an arguable case for sustaining the caveat.
[16] Arguments about trapping of animals and other peripheral interests were raised at the hearing. I consider that they are extraneous, and addressing the issues directly bearing on the cutting rights will be sufficient to resolve the matter at this stage.
What is the nature of the interest?
[17] The Deed confers a right not only to enter the land, but to take logs from it. As such it is different from an easement. The difference between the two rights is:9
6 GW Hinde and others Principles of Real Property Law (2nd ed, LexisNexis, Wellington) at
10.020(c).
7 Stewart v Kaipara Consultants Ltd [2000] 3 NZLR 55 (CA).
8 Principles of Real Property Law, above n 6, at 10.020(c).
9 Rebecca Hofmann (ed) Land Law, above n 3, at [9.2.01], citing Alfred F Beckett Ltd v
A profit à prendre confers a right to sever and take from a servient tenement something which had been part of the servient tenement; that is, something attached to the land. The thing that is severed must be capable of ownership (minerals or timber, for example). In comparison, an easement only confers a right to utilise a servient tenement in a particular manner, or to prevent a specified activity on the tenement.
[18] A profit à prendre is a registrable interest, and it will support a caveat.10 The deed also implicitly recognises that the right is an interest in land, as it specifically provides that property passes only once the trees are severed from the land. 11
Is a profit à prendre requiring resource consent caveatable?
[19] Despite the established principle that profits à prendre are generally registrable, counsel for Mr Ensor argues that in this particular case, the claimed interest has not crystallised to the extent that it can be either registered or caveated. He says that it is a contingent interest only.
[20] The test for whether an interest in land is caveatable was traditionally expressed as a question of whether the contract creating that interest was capable of specific performance. Counsel for Mr Ensor appears to assume that that is still the position. It is established, however, that a purchaser of land under a conditional contract pending completion has an immediate equitable interest capable of supporting a caveat.12 That position has been refined further with regard to statutory conditions. There are now many statutes which govern and restrict the way that land may be dealt with. Those have caused problems for the courts in the past. Bevin v
Smith is the leading case on the matter. Though that case dealt with conditional contracts for sale, and discussed the issue of consent of a statutory board in that context, I do not think that any material distinction can be drawn between a contract
for sale and another contract transferring an interest in land. Bevin v Smith says:13
Lyons [1967] Ch 449; [1967] 1 All ER 833, at p 482; p 851, per Winn LJ.
10 Land Transfer Act 1952, s 90; Principles of Real Property Law, above n 9, at 10.009(u); Halliday v Bank of New Zealand HC, Napier, CIV-2012-441-489, 21 November 2012.
11 As is usual for logging rights; see Forestry Rights Registration Act 1983, s 3. Although this is not, strictly speaking, a forestry right, the Act demonstrates the usual practice.
12 See Morland v Hales (1910) 30 NZLR 201 (CA), as cited in Bevin v Smith [1994] 3 NZLR 648 (CA) at 665.
13 Bevin v Smith at 665.
Many contracts in New Zealand are made conditional upon the consent of a statutory board, consent which is ordinarily given as a matter of course. It would be a peculiar situation if pending that consent the vendor was free to treat the land as his own, and to retain the benefit of the sale of the paper road which he only received by virtue of his position as owner of the adjoining land..
[…]
as a matter of practicality, parties to a contract which is defeasible upon failure of a condition of the kind complained of here are in essentially the same position as parties to an unconditional contract pending completion. The condition in this contract was expressly identified as a condition subsequent. The equitable interest of a purchaser always is contingent upon payment of the purchase price in due time and performance of any other obligations arising as terms of the settlement. In principle it is difficult to distinguish the position of a purchaser having that conditional equitable interest from that of a purchaser in a contract where the vendor has the further specifically enforceable obligation to take all necessary steps to secure a consent which should be available as a matter of course. The identification by McGechan J of a contingent equitable interest of an unpaid vendor in Whiteleigh Holdings (NZ) Ltd v Whiteleigh Pacific Resources Ltd (1987) ANZ ConvR 480, 482 was consistent with this view.
For these reasons we consider that an equitable interest in land should, and does, pass under a conditional contract of the kind involved here, even though specific performance of the contract in the strict sense is not available. We agree with the recent Australian authorities to the effect that the equitable estate passes when equity will, by injunction or otherwise, prevent the vendor from dealing with the property inconsistently with the contract of sale, ie inconsistently with the purchaser's contingent ownership rights. It will be sufficient if the Court will order specific performance of the contract subject to the contingency.
[…]
We stress that whether the equitable interest has passed must always depend on the terms of the contract itself. There will be some conditional contracts, particularly those subject to true conditions precedent, where the parties cannot be regarded as intending that equitable title will pass to the purchaser until the condition is waived or fulfilled. In the end it must be remembered that by saying the equitable title has passed, equity is doing no more than recognising that the purchaser must have acquired rights which should be protected in an appropriate manner.
[emphasis added].
[21] In McDonald v Isaac, Tipping J summarised the test:14
It has recently been held by the Court of Appeal in Bevin v Smith [1994] 3 NZLR
648 that equitable interests in land can be acquired pursuant to conditional contracts. The nature of the condition may be important. If it is such that until fulfilment it
can be said that the parties did not intend to create any interest in land there
14 McDonald v Isaac Construction Co Ltd [1995] 3 NZLR 612 (HC) at 619.
will be no caveatable interest unless and until the condition is fulfilled. But, in the usual case where the parties intend to be bound and to remain bound subject to the fulfilment of the condition, equitable interests in land can arise by means of such a conditional contract.
[Emphasis added]
[22] He said further:
An important aspect of the decision in Bevin v Smith is that it represents a clear retreat from the rigidity of the earlier view that an interest in land cannot arise under a contract unless and until that contract is susceptible of an order for specific performance. While a contract remains conditional, it is not usually enforceable by an order for specific performance in the conventional sense. That order can be made only if and when the condition is satisfied. Equity seldom orders specific performance on a conditional basis.
The point, for present purposes, is that an equitable interest in land capable of sustaining a caveat can arise under a conditional contract before specific performance could be ordered of that contract.
[Emphasis added].
[23] Where there is a statutory overlay which would impede specific performance, the real nature of the test becomes clear. It is not whether the contract can be specifically performed. That question is a shortcut to the real test. The question is whether the owner of the land can revoke the arrangement that justifies the caveat.15
In a true condition precedent, where the right does not come into existence until the
condition is fulfilled, he would be able to do so. However, where the owner of the land is fully committed to the arrangement, and the result is outside his control, it is already too late. A statutory overlay of the kind we see in this case will prevent specific performance, but it does not mean that the owner is less than fully committed to the arrangement, and it will not preclude a preventive injunction, as per the reformulated test from Bevin.
[24] I am satisfied that this is one of those cases where, despite a requirement for statutory compliance, the parties must have intended to create a binding profit à prendre. That was the whole purpose of the deed. An application under the Resource Management Act 1991 is not an exercise in rubber-stamping. Nonetheless, the deed is phrased in a way that makes it clear that the right is understood to pass
immediately, despite the lack of resource consent and forestry permits. It does not
15 See O’Leary v Sentiero Properties Ltd (2006) 7 NZCPR 869 (CA) at [52].
say “if you acquire the necessary statutory permissions, then you can have a right”. It says “here is the right; making the practical arrangements to use it is your concern, not mine”.
[25] Furthermore, even if an application for resource consent or a logging permit is rejected, an applicant is free to reapply with a reformulated plan. There is nothing to stop Mr Ford doing so, particularly considering the duration of his cutting rights. Whether or not he is capable of raising the money to do so is, in effect, a question of whether the profit is likely to be usable. That is a question of fact. As such, it goes to the exercise of the residual discretion, not to whether the right is legally available to him.
[26] I conclude that the parties intended to be bound, and to remain bound. As such, the interest conferred by the deed is of a type that would justify a caveat.
Does the caveat adequately describe the nature of Mr Ford’s claimed interest?
[27] For the caveat to be sufficiently certain, it must adequately describe both the nature of the land or estate or interest claimed by the caveator, and how the land or estate or interest claimed is derived from the registered proprietor.16
[28] Mr Ensor has raised two objections on this front. He says that the nature of the interest created by the deed is wrongly described. He also says the caveat purports to apply to a greater part of the land than the instruments it relies on, and that the land subject to the lease is not described with sufficient certainty.
[29] Section137 relevantly provides:
(2) A caveat under this section must contain the following information:
…
(b) the nature of the land or estate or interest claimed by the caveator, which must be stated with sufficient certainty;
and
16 Land Transfer Act 1952, s 137(2)(b), (c), (d).
(c) how the land or estate or interest claimed is derived from the registered proprietor; and
…
(e) the land subject to the claim must be described with sufficient certainty
…
[30] The caveat identifies the lease accurately. It refers to the deed by date. However, presumably due to Mr Ford’s confusion as to the nature of his interest, the deed is referred to as a “memorandum of easement”. The question on this front must be whether the “memorandum of easement” referred to is sufficiently clear to denote the nature of Mr Ford’s interest. The Court of Appeal has recently addressed the
standard of description required:17
What is important is that the registered proprietor and the Court understand the nature of the interest claimed and the basis of that claim.
[…]
Applying the same test, did the caveats comply with s 137(2)(c)? In our view, they did. There was a clear link between the named trustee (Mr Wang) and the registered proprietors, of which he was one. The caveats made it clear that the interest was derived from Mr Wang's involvement with Mr Zhong. The nature of the involvement would have been self-evident to Mr Wang.
[…]
The purpose of the caveat procedure is to enable those with proper claims to proprietary interests to protect themselves against loss by forbidding dealing with the land pending resolution of substantive claims. The underlying purpose of the caveat regime could be undermined if too strict an approach were taken to the detail required to describe the interest claimed and its derivation from the registered proprietor.
[31] Caveats have been set aside for uncertainty where the nature of the interest was correctly denoted, but not tied to any particular agreement or course of conduct.18 The question seems to me to be one not of formal correctness, but of whether the interest has been sufficiently identified so that the registered proprietor can address whether it is legitimate. As Zhong v Wang points out, that requires both
the registered proprietor and the Court to understand the nature of the interest
17 Zhong v Wang (2006) NZ ConvC 194, 308 (CA) at [53]-[58].
18 Holdgate v Official Assignee HC Auckland CIV-2007-404-727, 16 April 2007.
claimed and where it derives from. That interpretation is supported by Jian Hua
Property Ltd v Cheng:19
[32] As I understand that decision, the essence of the matter remains that it is a matter of fact for the Court on the individual case whether the registered proprietor can understand the nature of the interest being claimed, and the basis on which it is said to arise.
[33] Whether or not the caveat correctly names the “easement”, it refers to the document that created it. Both parties must know that it refers to the 2008 deed and the interest created by the deed. The content of that deed is available to them and to the Court. Furthermore, it is well-recognised that easements and profits are closely related. Section 90E of the Land Transfer Act, for example, provides that ss 90-90D
apply as if an easement includes a profit à prendre.20 Applying the test in
Zhong v Wang, I think the nature of the interest has been adequately described. Mr Ford’s mistaken labelling of the interest involved does not change its nature, nor the parties’ or the court’s understanding of it.
[34] That leaves only the question of whether the caveat correctly describes the land subject to the claimed interests.
[35] The caveat identifies the lease and the deed. That, in my view, is sufficient to identify the land affected so long as the lease and deed themselves are clear. Mr Ensor argues that the lease is void for uncertainty because it does not adequately describe some of the boundaries of the land affected, and therefore the caveat is also void. He also says there is a discrepancy between the area described in the caveat and the area contained in the certificate of title.
Though, on the face of it, there is a degree of uncertainty to the lease, the Courts will strive to give certainty to agreements where it is clear that the contracting parties
intended to create legal relations.21 That clearly is the case here. I therefore assume
19 Jian Hua Property Ltd v Cheng (2006) 7 NZCPR 581 (HC) at [23].
20 These sections deal with registration of easements and profits à prendre, which in my view heightens their relevance as a demonstration of the similarity of the interests.
21 Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand Ltd [2002] 2 NZLR
Mr Ensor knew the extent of the land is that is identified on the plan he chose to lease, and that the land is capable of objective definition by a surveyor. In any case, given my conclusion above, I am of the view that the deed justifies the caveat regardless of the status of the lease. In an application which is to be determined on the plaintiff’s pleaded facts, I must accept Mr Ford’s evidence as to the reason for the minor difference between the land area described in the deed and that shown on the Certificate of Title. I am not willing to accept Mr Ensor’s argument that the lease and the profit are invalid. If he wants to argue that the very rights he intended to create are to be given no effect, then the onus is on him to prove it, and he must bring substantive proceedings to that effect. It remains to be seen whether the Court will import a mechanism to objectively define the leased area should that be necessary. Should I exercise my discretion not to sustain the caveat?
[36] Mr Ensor has asked me to exercise my discretion not to sustain the caveat, even if I find that it otherwise meets the statutory requirements, on the ground that the caveat will provide no practical benefit to Mr Ford. I am not satisfied on the evidence before me that that is the case.
[37] Clause 23 reads:
Notwithstanding anything hereinbefore contained the Grantors will not be under any duty to take any steps or measures or expend any sum of money in order to enable these presents to be registered pursuant to the provisions of the Land Transfer Act 1952, but the Grantees shall be at liberty (at the Grantee’s sole cost) to have those presents so registered.
[38] It would take a tortured reading to conclude that this clause did not require Mr Ensor to sign such applications as it allows Mr Ford to make. The purpose of the clause is twofold:
(a) to allow Mr Ford to make the applications; and
(b)to prevent him from placing the responsibility for, or the cost attached to the application, on Mr Ensor, or having Mr Ensor do the work of
filing the applications.
433 (CA) at 445.
[39] To read this clause as not requiring Mr Ensor to sign the applications would deprive it of effect, and deprive Mr Ford of its benefit. Mr Ensor has claimed that he must go to his lawyer’s office in order to sign the documents, and that will cost money; I suspect that that is his choice, rather than a true requirement, but even if it is a true requirement all it means is that Mr Ford must pay his lawyer’s fee.
[40] On an objective, common-sense reading, the intent of the clause is obviously to require Mr Ensor to signal his acquiescence by providing signatures where necessary. He cannot say that it does not require him to sign the relevant applications, and he certainly cannot rely on it as precluding the caveat.
[41] Counsel for Mr Ensor argued that he would be unable to obtain a resource consent or forestry permit as Mr Ensor was not obliged to sign the necessary forms. As I have said, that is incorrect. It is common ground that Mr Ford’s proposed logging is not a prohibited activity under the Resource Management Act, so this is not a situation where resource consent could never be granted. Likewise, though there is an Environment Court injunction currently in place which prevents Mr Ford from cutting timber, that injunction requires him only to get resource consent before doing so. It is not an absolute prohibition. The same applies regarding the necessary permits.
[42] Mr Ensor also submits that Mr Ford will be unable to comply with the statutory requirements because he cannot afford to apply for the necessary consents. I do not accept that argument. There is evidence to suggest that Mr Ford has realistic financing options. I am not prepared to conclude that he will have no practical benefit from his caveat due only to a lack of funds. Similarly, Mr Ensor has suggested that Mr Ford will be unable to profit from his suggested logging, and has brought evidence that some areas of the land will not be able to be milled during the term of the lease or the renewal. Mr Ford has, however, brought evidence to the contrary. Tellingly, Mr Ensor himself appears to have seen utility in applying for a permit and resource consent, judging by the fact that he offered cutting rights to Mr Wood and obtained a permit himself. I consider that for present purposes, Mr Ford is entitled to the benefit of the doubt. As such, I decline to exercise my discretion to order the removal of the caveat.
[43] The one issue that remains is whether the caveat should stand in respect of the area that is the subject of the recent subdivision and sale to Mr Matthews. I accept as reasonable Mr Ford’s request that documentary evidence of the sale be provided before the caveat over that area is lifted, and I deal with this in the orders that follow.
Result
[44] Mr Ford has a clear legally arguable case for the interests he claims in the land. As such, the caveat is sustained for the time being. Whether the caveat should be sustained in the long term, and in what form, will be a question of fact to be decided on a substantive application - whether made by Mr Ford or Mr Ensor.
[45] There is one condition – it is that subject to Mr Ensor filing and serving within 5 working days an affidavit to produce the agreement for sale and purchase to Mr Matthews, and the Court’s approval, Mr Ensor may seek an order as follows:
That the caveat shall lapse in respect of the lot that has been sold to Mr Matthews upon deposit of the survey plan for the subdivision of the new lot. The new title for the lot may be uplifted and transferred to Mr Matthews free of the caveat.
[46] In order to enable Mr Ensor to file the affidavit and seek the Court’s approval, this decision is issued as an interim decision. Mr Ford is to have the opportunity to file and serve a brief affidavit and supporting memorandum in response, in the event that any issues arise. He is to do so within a further 5 working days.
[47] As costs follow the event and Mr Ford is to all intents and purposes the successful party he is entitled to costs pursuant to the statutory costs regime. I make an order for costs and disbursements against Mr Ensor on a 2B basis plus
disbursements as fixed by the Registrar.
Associate Judge Sargisson
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