Gourdie v Davies - [2021] NZHC 1312

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2021-442-000028

[2021] NZHC 1312

UNDER section 146 of the Land Transfer Act 2017

IN THE MATTER OF

an originating application for an order permitting the registration of a second caveat against dealings

BETWEEN

JOHN WINTON GOURDIE, COLLEEN NATALIE GOURDIE and ROSS ANDREW

STEVENSON in their capacity as Executors in the Estate of IAN GOURDIE

Applicants

AND

COLLEEN NATALIE GOURDIE

Applicant

AND

ANDREW MARTIN HULME DAVIES and TINA DAVIES

Respondents

Hearing: On the Papers

Counsel:

A R Shaw for the Applicants

Judgment:

4 June 2021

JUDGMENT OF PALMER J

Solicitors:
C & F Legal Limited, Nelson

GOURDIE v DAVIES [2021] NZHC 1312 [4 June 2021]

What happened?

[1] On 9 September 1993, and again on 21 June 1996, Mr Ian Goudie and Mrs Colleen Gourdie agreed in writing with the owners of an adjoining property to have a right of way over the adjoining property in Atawhai, Nelson.1 I accept the right possessed the essential characteristics of an easement, was granted in exchange for valuable consideration, and there is a sufficient record of the agreement in writing to satisfy s 24 of the Property Law Act 2007. In 1996, a caveat was registered over the adjoining title for an easement.

[2] In September 2016, the Davies became the registered owner of the adjoining property. Mrs Gourdie and the executors of the estate of Mr Gourdie (the Gourdies) consented to the transfer, without prejudice to their rights under the caveat. However, in July 2017, the Davies said they had no knowledge of that. The Gourdies’ solicitors sought confirmation of the position. The Davies’ solicitor reserved their right to apply for surrender of the caveat.

[3] On 10 December 2020, the Davies’ solicitors requested consent to a variation of the previous consent notice, without accepting the validity of the caveat. Consent was provided on the basis that, on 15 December 2020, the Goudies’ sought further entrenchment of their right of way interest.

[4] On 17 December 2020, the Davies gave notice to the Registrar-General of Lands seeking for the caveat to be removed. Unfortunately, the original address for service of the Gourdies, at a law firm that had ceased to exist, was out of date. They did not receive notice. The caveat was removed. The Gourdies became aware of that on 18 May 2021.

[5] Now, the Gourdies make an urgent application, without notice, for an order permitting the registration of a second caveat.

1 The facts outlined are based on the affidavit of John Gourdie, 1 June 2021.

Law of second caveats

[6] Section 146 of the Land Transfer Act 2017 prohibits a second caveat being lodged by the same person to protect the same interest as a caveat which has lapsed “unless the court orders otherwise”. In Muellner v Montagnat, Thorp J held that the predecessor to s 146, s 148 of the Land Transfer Act 1952, gave the Court an unfettered discretion…

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: [2021] NZHC 1312
Decision Date: 4 June 2021

CaseChat Overview and Summary

The High Court of New Zealand dealt with an originating application for an order permitting the registration of a second caveat against dealings between Ian Gourdie’s executors and estate, Colleen Gourdie, and Andrew and Tina Davies. The Gourdies sought to protect their right of way over an adjoining property in Atawhai, Nelson, which was previously protected by a caveat that had lapsed due to an oversight by their solicitors. The Davies, who had become the registered owners of the adjoining property, applied for the removal of the caveat, which was subsequently removed without the Gourdies receiving notice. The Gourdies then sought to lodge a second caveat without notice to protect their interest, which the Davies opposed. The central legal issues were whether the Gourdies had a caveatable interest in the right of way, whether the lapse of the first caveat was due to no fault of the Gourdies, and whether the Court should grant permission for a second caveat without notice. The Court found that the Gourdies had a caveatable interest in the right of way, and the lapse of the first caveat was due to no fault of their own. The Court also considered the principles set out in Muellner v Montagnat, which state that the Court generally considers the strength of the applicant’s case, any explanation for the failure to exercise the caveator’s rights, and whether unavoidable prejudice would be suffered by those acting in reliance on the register. The Court determined that granting the application without notice was in the interests of justice as it would protect the Gourdies' equitable easement from third-party purchasers for value without notice and that the Davies could still challenge the second caveat if they wished. The Court ordered the registration of a second caveat under s 146 of the Land Transfer Act 2017 against dealings to protect the same interests as the caveat that lapsed. The Court also ordered the Gourdies' solicitors to serve this judgment on the Davies' solicitors.

Orders