[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…

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.

Continue reading Ford v Ensor

Details

AGLC: Ford v Ensor [2015] NZHC 1459
Case: [2015] NZHC 1459
Decision Date: 26 June 2015

CaseChat Overview and Summary

In the case of Ford v Ensor, Mark Ford sought to maintain a caveat over Charles Ensor's property to protect his claimed interests in the land. Ensor opposed the application and sought to have the caveat removed. The primary issue for the court to determine was whether Ford's interest in the land was capable of sustaining a caveat and if the caveat sufficiently described the interest claimed. Ford argued that his interest in the land was a profit à prendre, which is a registrable interest and will support a caveat. Ensor argued that the claimed interest had not crystallised to the extent that it could be either registered or caveated and that it was a contingent interest only. The court found that Ford's interest in the land was indeed a profit à prendre, which is capable of supporting a caveat. Furthermore, the court held that the caveat adequately described the nature of Ford's claimed interest. The court concluded that Ford had a clear legally arguable case for the interests he claimed in the land, and therefore, the caveat was sustained for the time being.

In terms of the final orders, the court granted Ford's application to sustain the caveat with one condition. Subject to Ensor filing and serving within five working days an affidavit to produce the agreement for sale and purchase to Mr. Matthews, and the Court's approval, Ensor may seek an order 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. Ford was also granted costs on a costs and disbursements against Ensor on a 2B basis plus disbursements as fixed by the Registrar.

Orders