General Growth Rothesay Bay Limited v Garadice Limited

[2025] NZHC 2244

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-942

[2025] NZHC 2244

IN THE MATTER OF

AND

section 143 of the Land Transfer Act 2017

IN THE MATTER

of an application to sustain a caveat

BETWEEN

GENERAL GROWTH ROTHESAY BAY LIMITED

Applicant

AND

GARADICE LIMITED

Respondent

Hearing:	5 August 2025
Appearances:	R Hucker and O Ward for the Applicant P Rice and B Han for the Respondent
Judgment:	8 August 2025

JUDGMENT OF ASSOCIATE JUDGE GELLERT

This judgment was delivered by me on 8 August 2025 at 4pm.

Pursuant to Rule 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

Date ………………….

Solicitors:

Essence Law, Auckland Phillip Rice

P Rice, Auckland B Han, Auckland

GENERAL GROWTH ROTHESAY BAY LTD v GARADICE LTD [2025] NZHC 2244 [8 August 2025]

Introduction

[1]    The applicant, General Growth Rothesay Bay Ltd (GGRBL), has applied to sustain caveat 13219095.1 that it has lodged against the property at 33 Garadice Road, Rothesay Bay, Auckland (Property). The registered owner of the Property is the respondent, Garadice Ltd (Garadice), who opposes the application.

[2]    The parties agree that GGRBL has a caveatable interest in Lot 2 of the Property pursuant to an Agreement for Sale and Purchase entered into on or about 24 October 2024 (SPA).

[3]    The issue is whether GGRBL has an arguable interest in Lots 1, 3, 4, and 5 of the Property sufficient that the caveat be sustained pending determination of summary judgment proceedings. In those proceedings GGRBL seeks specific performance of Garadice’s obligation to convey Lot 2 to GGRBL under the terms of the SPA.

Background

[4]    The director and shareholder of Garadice, Kai Yu, advanced funds under a term loan agreement dated 11 November 2020 to General Growth Group Ltd (GGGL), a company related to GGRBL (Loan Agreement). Nan Yi is the sole director and shareholder of GGGL and GGRBL.

[5]    In 2021, GGRBL purchased the Property to undertake a development which included a subdivision of the Property into five separate lots (Lots 1 to 5).

[6]    On 23 October 2024, GGRBL, GGGL, Mr Yu, and Mr Yi reached a settlement in respect of the Property and the amounts outstanding under the Agreement. The parties entered a deed which set out the terms of the settlement (Deed).

[7]    Under the Deed, the parties agreed to enter and execute the SPA. Relevantly, the SPA provided that GGRBL would sell the Property to Garadice for a purchase price of $5,260,000. Clause 21.0 provided for the terms of payment and is set out in full below as it contains the terms which give rise to the issues in this application.

[8]    Importantly, cl 21.0 includes at sub-cl B an arrangement under which GGRBL buys back Lot 2 from Garadice, subject to certain terms (Buy Back Agreement):

21.0 The purchase price is to be paid or satisfied as follows on  the settlement date.

A.  By satisfaction of the loan of $1.9 million owing by [GGGL] to [Garadice] as set out in the Deed of settlement between the parties and GGGL dated 23 October 2024 and accrued interest thereon to the intent that the debt shall be deemed to be paid on settlement; and

B.   By [Garadice] agreeing to sell back to [GGRBL] and [GGRBL] agreeing to buy Lot 2 in the subdivision of the property initiated by [GGRBL], for the sum of $960,000.00 plus GST with:

a)    The Purchase price deemed to have been paid in advance by GGRBL upon settlement in accordance with this Agreement;

b)  The settlement date for the sale and purchase of Lot 2, shall be 10 working days after a search copy, as defined in Section 60 Land Transfer Act 2017 is obtainable or 10 working days after Code Compliance Certificate is issued, which is later;

c)  On Settlement date [Garadice] shall transfer Lot 2 to [GGRBL] or the Vendor’s nominee Lot 2 and will ensure that the title is not encumbered with any mortgage or other third party interest that may prevent the conveyance of the title to [GGRBL];

d)   [GGRBL] may lodge a caveat protecting this interest at anytime after the refinancing of the project is completed by [Garadice] or in the absence of proceeding with refinancing 30 working days after execution of this Agreement (whichever period arises first).

C.  As to the balance in cash in one lump sum being $2,459,434.69 as on 24 October 2024 (or such other amount as shall be required to be paid to discharge the ASAP mortgage granted by [GGRBL] secured against the Property) and the settlement date is 7 working days upon this Agreement declared unconditional in all aspects.

At the settlement and as a requirement for settlement, the Vendor must provide formal caveator consent for Land Transfer Act purpose to registration of document for the subdivision.

[9]    On or about 17 January 2025, a Code Compliance Certificate for the Property was issued by Auckland Council. Titles to Lots 1 to 5 of the Property were issued thereafter.

[10]   On 10 February 2025, GGRBL lodged the caveat against the title to the Property. There is no dispute as to its entitlement to do so, including as to the timing of lodgement.

[11]The interest recorded in the caveat lodged is:

An equitable interest and vendors lien in respect of the land pursuant to an Agreement for Sale and Purchase entered into on or around 24 October 2024 between the registered owner Garadice Limited and the Caveator General Growth Rothesay Bay Limited under which the Registered Owner is required to convey that part of the land comprising of Lot 2 LT 597979 free of any mortgage or charge to the Caveator for which the Caveator has provided valuable consideration and made payment as required for the conveyance to the Registered Owner.

[12]   GGRBL lodged the caveat against the head title to the Property as the separate titles to Lots 1 to 5 had not yet been issued. When the titles for Lots 1 to 5 were issued on 3 April 2025, the caveat was carried down to the separate titles.

[13]   There was subsequent correspondence between the parties in which Garadice, through its solicitors, asserted that GGRBL did not have a caveatable interest in Lots 1, 3, 4, and 5 of the Property. However as at 20 March 2025, Garadice’s solicitors confirmed by email that they had “on hand a signed A & I form for transfer of Lot 2”.

[14]   On 17 April 2025, being the settlement date under the Buy Back Agreement, Garadice did not transfer Lot 2 to GGRBL.

[15]   On 22 April 2025, GGRBL served a settlement notice in relation to Lot 2 on Garadice’s solicitors. The settlement notice stated that the purchase price was deemed to have been paid in advance and that GGRBL was ready, willing, and able to settle. Settlement has not yet taken place. There has been no evidence advanced as to why that is the case.

[16]   On 19 June 2025, GGRBL filed an application for summary judgment in a separate proceeding under CIV-2025-404-1644 seeking specific performance against Garadice in respect of the conveyance of Lot 2.

[17]   GGRBL has also filed an application for an interim injunction seeking to prevent Garadice from further encumbering or dealing with the Property. That application is scheduled to be heard on 8 October 2025. In the meantime, an order has been made pending the determination of that application, restraining Garadice from further mortgaging or otherwise selling charging or dealing with Lot 2.

[18]The parties proceeded on the basis that:

(a)the purchase price under the Buy Back Agreement was deemed to have been paid in full upon settlement of the sale of the Property from GGRBL to Garadice on 29 October 2024; and

(b)the mortgage registered in favour of Xceda Finance Ltd on 29 October 2024 remains secured by the Property, including over the title to Lot 2.

Submissions

Applicant’s submissions

[19]   Counsel for GGRBL, Mr Hucker, submits that GGRBL has a caveatable interest in the Property sufficient to support the caveat. In advancing this submission, Mr Hucker says in summary that:

(a)There is an arguable case that that the entitlement to lodge a caveat set out in sub cl 21.0B of the SPA recognises an interest in the entire Property and not just Lot 2. That is because the right secured by the interest was to the conveyance of Lot 2 with the Mortgage granted to Xceda Finance Ltd released.

(b)The caveat should remain until Lot 2 is transferred to GGRBL or the substantive specific performance proceeding has been determined.

(c)GGRBL has otherwise performed all its obligations under the SPA.

Respondent’s submissions

[20]   Counsel for Garadice, Mr Rice, acknowledges that GGRBL had a right to lodge the caveat over the head title of the Property prior to the issuance of separate titles, and has a right to maintain the caveat over the title to Lot 2. However, Mr Rice submits that, following the issue of separate titles, GGRBL does not have a reasonably arguable

case that it has a caveatable interest in the remaining Lots 1, 3, 4, and 5. In support, Mr Rice says that:

(a)GGRBL’s right to lodge a caveat under sub-cl 21.0B(d) of the Buy Back Agreement is a right to protect the “interest” described at cl 21.0B, being GGRBL’s agreement “to buy Lot 2 in the subdivision of the [P]roperty”. In other words, the caveatable interest is specifically (and only) GGRBL’s equitable interest as the purchaser of Lot 2.

(b)GGRBL’s caveatable interest in the entire Property only subsisted until a separate title to Lot 2 was issued on 3 April 2025, at which point GGRBL no longer had the right to maintain a caveat over any title in the Property other than the title to Lot 2.

(c)It is immaterial that sub-cl 21.0B(c) of the Buy Back Agreement specifically refers to the requirement that the title to Lot 2 is not to be “encumbered with any mortgage or other third party interest that may prevent the conveyance of the title” to GGRBL. That is because those words simply state expressly what is implicit in any subdivision or purchase of land; that the land will be unencumbered when transferred to the purchaser.

[21]   Accordingly, Mr Rice submits that the caveats over Lots 1, 3, 4, and 5 should be removed.

Application to sustain a caveat

[22]   Section 143 of the Land Transfer Act 2017 (LTA) sets out the process by which the registered owner of an estate or interest protected by a caveat against dealings may apply for a caveat to lapse. If an application is made for a caveat to lapse, the onus then shifts to the caveator to apply to the court for an order sustaining the caveat.1

1      DW McMorland and others Hinde, McMorland and Sim Land Law in New Zealand (looseleaf ed, LexisNexis) at [10.019].

[23]   The legal principles governing the jurisdiction to sustain a caveat under s 143 are well established.2 Broadly, these principles can be summarised as follows:

(a)The onus is on the caveator to demonstrate that they hold an interest in the land that is sufficient to support the caveat.3 To do so, the caveator must put forward a reasonably arguable case to support the interest they claim.4

(b)The process involved in applications of this nature are not suited to the determination of disputed questions of fact. An order for the removal of a caveat will only be made if it is patently clear that the caveat cannot be maintained—either because there is no valid ground for lodging it in the first place, or because such a ground no longer exists.5

(c)Although the onus of proof lies with the caveator, any conflict between affidavits will generally be resolved in the caveator’s favour. That said, the court need not accept uncritically statements in an affidavit that lack precision, are equivocal, inconsistent with the documentary evidence or other statements of the same deponent, or inherently improbable.6

(d)If the court is satisfied that the caveator has a legitimate and caveatable interest, the court still retains a residual discretion to not uphold a caveat where it could serve no useful purpose or alternative protection is available.7 But this discretion will be exercised only cautiously (for example, where the court finds there is no practical advantage to maintaining a caveat and the caveator will not be prejudiced).

2      See Green & McCahill Holdings Ltd v Ara Weiti Development Ltd [2022] NZCA 218 at [80] citing Philpott v Noble Investments Ltd [2015] NZCA 342 at [26]; and Sims v Lowe [1988] 1 NZLR 656 (CA) at 659–660.

3      Sims v Lowe, above n 2, at 660.

4      Castle Hill Run Ltd v NZI Finance Ltd [1985] 2 NZLR 104 (CA) at 106.

5      Bethell v Rickard [2013] NZCA 68 at [22].

6      Barrett v IBC International Ltd [1995] 3 NZLR 170 (CA) at 175, citing Eng Mee Yong v Letchumanan s/o Velayutham [1980] AC 331 (PC) at 341; and Xie v 126 Waimumu Ltd [2020] NZHC 1109 at [8].

7      Orams Marine (Auckland) Ltd v Ports of Auckland Ltd (1994) 6 TCLR 88 (CA) at 92; and Pacific Homes Ltd v Consolidated Joineries Ltd [1996] 2 NZLR 652 (CA) at 656.

[24]   Whether a person has a caveatable interest depends on whether they hold a present legal or beneficial interest in the land. A purely personal or contractual right will not suffice unless it gives rise to such an interest. The category of caveatable interests recognised under the LTA is not closed and may extend to new types of interests, provided they amount to a legal or equitable interest in the land.8

Discussion

Is there an equitable interest in lots 1, 3, 4, and 5 of the Property?

[25]   It is accepted by both parties that the applicant has an equitable interest in Lot 2 as a purchaser under the terms of Buy Back Agreement. That is consistent with the well understood principle that purchasers of land are entitled to a lien over the land for the purchase money paid in cases where the purchaser has not been in default.9

[26]   Mr Rice submits that it can be said with certainty that there is no caveatable interest in the remaining lots. The case law establishes the proposition that a caveat can be lodged over a head title to protect the interest of a purchaser in a future title.10 However, after title is issued that caveatable interest is limited to the title that has agreed to be transferred to the purchaser.11

[27]   In support, Mr Rice highlighted that, as a matter of contractual interpretation, regard should be had to cl 21.0B of the Buy Back Agreement when determining the “interest” that GGRBL may lodge a caveat to protect. He says that under cl 21.0B, GGRBL agrees “to buy Lot 2 in the subdivision of the property …”. Accordingly, the caveatable interest arising is a simple purchaser’s lien over Lot 2, and no more.

[28]   Mr Rice says that in these circumstances, by maintaining the caveat over Lots 1, 3, 4, and 5, GGRBL is “strong-arming” the respondent to force the transfer of title of Lot 2.

8      Philpott v Noble Investments Ltd, above n 2, at [28]

9      Francis v Gross [2024] 3 NZLR 527, [2024] 3 NZLR 527 at [66].

10     Howard v Resort Developments Ltd (2007) 8 NZCPR 505 at [20] and [24].

11     Philpott v Noble Investments Ltd, above n 2, at [57].

[29]   In contrast, Mr Hucker argues that cl 21.0 can reasonably be read as conferring an equitable charge over the Property as a whole in favour of GGRBL, which arguably creates an entitlement to sustain a caveat pending the satisfaction of Garadice’s obligation to transfer Lot 2 unencumbered with any mortgage or other third-party interest.

[30]   Mr Hucker’s position is persuasive. Both counsel advanced the proposition that whether or not  a caveatable interest exists  depends upon the construction of    cl 21.0.

[31]   Assessing whether cl 21.0 creates a caveatable interest is to be determined by ascertaining the meaning that the terms, within the context of the agreement as a whole, would convey to a reasonable person with all the background knowledge reasonably available to the parties at the time of contracting.12

[2]  In undertaking this inquiry, the court—embodying the reasonable person—  must assess the evidence reasonably available to both of the parties at the point of contract which could bear upon the meaning of those words.13 Evidence of prior negotiations and subsequent conduct can be considered when determining the meaning of the terms, subject to the general evidential requirements on extrinsic material.14 But evidence of the uncommunicated subjective intention of one party will not be relevant to this process.15

[32]             The relevant commercial context in this proceeding is set out in the affidavit of Mr Yi. Mr Yi deposes that:

The arrangement that I had with Kai Yu was that upon Lot 2 being conveyed to me or my nominee I would have no further interest in the Property. At no time did I agree to limit any interest I had in the property pending the conveyance of Lot 2 in unencumbered form to simply an interest in Lot 2 as opposed to the entire property. I was concerned to ensure that the remaining lots were not sold leaving Lot 2 subject to a mortgage which meant that Lot 2 could not be conveyed by Kai Yu unencumbered (i.e. that his financiers would

12 Firm PI 1 Ltd v Zurich Australian Insurance Ltd T/A Zurich New Zealand [2014] NZSC 147, [2015] NZLR 432 at [60]–[63]. See also Investors Compensation Scheme Ltd v West Bromwich Building Society [1997] UKHL 28, [1998] 1 WLR 896 at 912–913.

13 Bathurst Resources Ltd v L&M Coal Holdings Ltd [2021] NZSC 85, [2021] 1 NZLR 696 at [46].
14 At [77]–[79], [89] and [232].

15 At [68].

insist on further payment being made to enable Lot 2 to be transferred to me). Contemporaneously with the transfer of Lot 2 in unencumbered form I would release the caveat over the remaining Lots. My solicitor had lodged the caveat prior to the titles being issues over the Property.

[33]             Mr Yi’s evidence is commercially logical. It is rational that GGRBL would seek an unencumbered property. As Mr Rice submitted, that is implicit with any purchase of land. However, that evidence is without response. There is no evidence from Garadice regarding the SPA and the Buy Back Agreement. Mr Rice said that this was because cl 21.0 speaks for itself and it was not advantageous for Garadice in “going down a contractual dispute path”.

[34]             I agree with Mr Rice. It is possible to assess the meaning of cl 21.0 on its face, and for that reason I do not give Mr Yi’s evidence any particular weight.

[35]               The plain language of cl 21.0 is consistent with the interpretation that it confers an equitable charge in favour of GGRBL that entitles it to lodge a caveat over the Property as a whole:

(a)Clause 21.0, read as a whole, is the parties’ agreement as to payment for the Property. It is not limited to the terms upon which Lot 2 will be transferred, which is contained at cl 21.0B. The Property as a whole is the subject matter of cl 21.0.

(b)Garadice’s stated obligation is to transfer Lot 2 to GGRBL unencumbered with any mortgage or other third-party interest. A purchaser of land may say that it goes without saying that she or he will obtain an unencumbered property. However, in this case, this requirement was prescribed in circumstances where it was known that Xceda Finance Ltd was advancing funds to be secured over the Property including Lot 2 following the issuance of separate titles. It follows that the parties agreed that it was important to specify that requirement in this case. Meaning should be given to the requirement that Lot 2 be unencumbered.

(c)GGRBL was granted an express entitlement to lodge a caveat to protect “this interest”, which included GGRBL’s right to Lot 2 being transferred unencumbered.

(d)Clause 21.0 does not specify that GGRBL’s entitlement to caveat to protect its interest is limited to Lot 2. It is therefore arguable that the entitlement to lodge the caveat is over the Property as a whole.

(e)Clause 21.0 expressly contemplated that the caveat would be lodged over the Property as a whole, because it provided that GGRBL “must provide formal caveator consent for Land Transfer Act purpose to registration of document for the subdivision [sic]”.

[36]             Because all lots of the Property were subject to Xceda Finance Ltd’s registered mortgage, it follows that something more than a caveat lodged over Lot 2 was contemplated by the parties in order to protect GGRBL’s interest. It is arguable that GGRBL has an equitable interest in the entire Property, to protect and ensure satisfaction of the condition that Garadice transfer Lot 2 to GGRBL unencumbered. This is a different interest to GGRBL’s undisputed equitable interest as purchaser of Lot 2.

[37]             The caselaw is consistent with this approach. In Mortre Holdings Ltd v ANCL Investments Ltd,16 the caveator claimed an interest in two lots of land that were part of a larger undivided title at the time. The agreement provided that those lots would be transferred to the caveator if a subdivision was completed within a specified timeframe. In those circumstances, the Court of Appeal considered that the caveator held an equitable interest in the land and that this interest was capable of protection by a caveat, although agreed with the High Court’s decision to lapse the caveat for other reasons. That equitable interest arose even though the purchaser’s interest was contingent on the outcome of conditions. The Court of Appeal said:17

[10]      In the case of conditional contracts where the parties intend to be bound and to remain bound subject to the fulfilment of the condition, an

16     Mortre Holdings Ltd v ANCL Investments Ltd [2016] NZCA 494.

17     At [10] to [14].

equitable interest in the land may also arise.18 In such circumstances there is a reasonable expectation by virtue of the agreement for sale and purchase that the registered proprietor will not act inconsistently with the purchaser’s contingent interest in the land until the outcome of the condition is ascertained. Equity will provide remedies if the vendor’s actions materially endanger that expectation.19 The beneficial interest will cease if the contract is avoided for failure of the condition in the same way as it may for cancellation for breach or upon non-payment of the purchase price.20

[11]It was said in Bevin v Smith:21

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.

[12]   The equitable interest does not equate to the unconditional equitable ownership of the land as it does for an unconditional contract, but it is more than a contractual or personal right. Contractual intention to create an interest evinced in the contract is critical.22

[13]     The interest arises as a matter of equity, rather than contractually as a specific term of the agreement, or from a term such as the term in this agreement requiring good faith. The purchaser’s interest has differences to an interest in the land that arises following an unconditional contract. As was observed by Mason and Deane JJ in Legione v Hateley:23

A competing view — one which has much to commend it — is that the purchaser’s equitable interest under a contract for sale is commensurate, not with her ability to obtain specific performance in the strict or primary sense, but with her ability to protect her interest under the contract by injunction or otherwise.

[14]     Where a vendor is obliged to carry out certain steps to bring about the condition, equity will require the vendor’s conscience to comply with that obligation and will protect a purchaser from actions by a registered proprietor that may defeat the purchaser’s interest. The purchaser is entitled to expect that the vendor will make reasonable efforts to obtain the necessary approvals and will do nothing in the meantime to act inconsistently with the purchaser’s

18     Bevin v Smith [1994] 3 NZLR 648 (CA) at 665; and McDonald v Isaac Construction Co Ltd

[1995] 3 NZLR 612 (HC) at 619.

19 See discussion in KL Liew “Conditional Contracts and Caveatable Interests: A Mutual Exclusion?” (1995) 14 U Tas LR 63 at 64.

20     Bevin v Smith, above n 18, at 665.

21     At 665.

22 See D W McMorland “A new approach to precedent and subsequent conditions” (1980) 5 Otago LR 469.

23 Legione v Hateley (1983) 152 CLR 406 at 446. Mason and Deane JJ ultimately did not adopt or apply this view. There is criticism of the approach of Mason and Deane JJ by Brennan J in his dissent in the same case and in WMC Gummow “Forfeiture and Certainty: The High Court and the House of Lords” in PD Finn (ed) Essays in Equity (Law Book Company, Sydney, 1985) 30 at 35–37. See also Stern v McArthur (1988) 165 CLR 489 at 552 where Deane and Dawson JJ took the view the extent of the purchaser’s interest is to be measured by the protection that equity will give to the purchaser.

interest.24 Indeed, the right of a party to seek specific performance can extend to a conditional contract, the performance sought being the defaulting party taking steps to perform a condition.25

[38]             In Yuan v Te Construction Ltd,26 a project management company was granted a right to caveat development properties under its project management agreements to secure performance of a contractual obligation to pay the caveator a share of the proceeds of sale. In interpreting the relevant clause in that case, Master Lang (as he then was) held that it was arguable that the clause created an equitable charge over the land in question to secure the performance by the owners of their obligations under the agreements.27

[39]             A caveat over Lot 2 may be insufficient in circumstances where the balance of the Property could be currently or subsequently encumbered to the extent that the interest intended to be protected by both cl 21.0 and the caveat is rendered nugatory. I find it is arguable that an equitable charge over the Property as a whole exists to protect GGRBL’s entitlement under the SPA to a conveyance of Lot 2 unencumbered.

[40]             Mr Hucker submitted that the language of the caveat encompassed an equitable charge and is not limited to asserting a purchaser’s equitable interest. This is important because a caveat must state with sufficient certainty the interest that the caveator claims.28 I agree that the language in the caveat is adequate to describe the equitable charge asserted.

Is there a vendor’s lien in the Property?

[41]             Given my conclusions above it is unnecessary to determine the GGRBL’s written submission that an interest in the nature of vendor’s lien exists. This argument was not pursued with any vigour in any event.

24 There is a well-established implied obligation to take reasonable steps to fulfil a conditional contract: WR Clough & Sons Ltd v Martyn [1978] 1 NZLR 313 (CA) at 317; Steele  v  Serepisos [2006] NZSC 67 ; [2007] 1 NZLR 1 at [5] per Elias CJ, [22]–[25] per Tipping J; [91]–

[92] per McGrath J; and [133] per Anderson J; Singh v Potters Park Property Ltd [2015] NZCA 146 at [42]; and John Burrows, Jeremy Finn and Stephen Todd Law of Contract in  New  Zealand (5th ed, LexisNexis, Wellington, 2016) at [8.2.5].

25 Steele v Serepisos, above n 24, at [133] per Anderson J.

26 Yuan v TE Construction Ltd HC Auckland CIV-2003-404-003019, 12 August 2003.
27 At [27].

28 DW McMorland and others Hinde, McMorland and Sim Land Law in New Zealand, above n 1, at [10.013].

[42]             For  the  avoidance  of  doubt,  no  vendor’s  lien  arises.   Traditionally,   New Zealand law recognised a ‘vendor’s lien’ whereby a vendor of land was recognised as having equitable lien over the land if they had not received the full purchase price after transferring title to the buyer.29 However, the recognition of vendor’s lien has since been abolished by s 67 of the Property Law Act 2007.

Result

[43]             For the reasons above, I am satisfied that caveat 13219095.1 should not lapse pending further order of the Court or the agreement of the parties.

[44]             Counsel for both parties agreed that costs should follow the event on a category 2B basis. Accordingly, the applicant is awarded costs on a 2B basis and disbursements, as fixed by the Registrar.

Associate Judge Gellert

29     Francis v Gross, above n 9, at [66].