Grande Meadow Developments Ltd v Clark Road Developments Ltd - [2018] NZHC 1394

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-376

[2018] NZHC 1394

BETWEEN
GRANDE MEADOW DEVELOPMENTS LTD
First Applicant

NEW ZEALAND GENERAL REAL ESTATE LTD
Second Applicant

KINGSTONE PROPERTY LTD
Third Applicant

AND

CLARK ROAD DEVELOPMENTS LTD

Respondent

Hearing: 30 April 2018

Appearances:

J D McBride for the Applicants

J A Knight and C Fan for the Respondent

Judgment:

13 June 2018

JUDGMENT NO 2 OF PALMER J

This judgment is delivered by me on 13 June 2018 at 3.00 pm pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors/Counsel:
J D McBride, Barrister, Auckland Burton Partners, Auckland Simpson Grierson, Auckland

GRANDE MEADOW DEVELOPMENTS LTD v CLARK ROAD DEVELOPMENTS LTD NO 2 [2018] NZHC 1394 [13 June 2018]

Summary

[1] The parties are in dispute over the construction of common infrastructure in a property development at Hobsonville. At arbitration, the applicants will seek specific performance of the contract. In the meantime, they seek an order for interim measures under the Arbitration Act 1996, preventing the respondent from applying for title over its development. I decline to grant the application. I am not satisfied the harm to the applicants, which is not easily pinned down, would substantially outweigh the harm likely to result to the respondent from the order. Indeed, the order may increase the risks about which the applicants are concerned. Neither have the applicants satisfied me any harm to them would not be adequately compensable by damages.

What happened?

[2] The applicants and respondent are involved in a property development by way of subdivision at the Scott Point Special Housing Area at Hobsonville, Auckland. The respondent, Clark Road Developments Ltd (Clark Road) owns a property down the hill from the properties owned by the applicants. Common infrastructure for all properties in the development is to be built.

[3] On 5 August 2015 the five sets of landowners, or their predecessors, and their joint company, Clark Road Landowners Group Ltd (CRLG), signed a Development Cooperation Agreement (DCA). Four of the landowners are parties to this proceeding. The land of the other owner is separate from the rest of the properties. The DCA envisaged they would go on to form individual companies to carry out common infrastructure works under a series of Infrastructure Cost Sharing Agreements (ICSAs). Clause 2.3 of the DCA provides:

The Owners must enter into separate ICSAs for each item of infrastructure from which those Owners’ developments benefit as determined and as required by [CRLG]. The terms of each ICSA will be more or less as described in the draft ICSA attached in Schedule 3 but modified to suit each item of Infrastucture as required by [CRLG] and as agreed by the Owners who will be parties to that ICSA. All relevant parties shall act reasonably and promptly in the negotiation and documentation of an ICSA.

[4] A draft ICSA, with more tightly binding provisions, was attached to the DCA. Under it…

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.

Keep reading for free

Create a free CaseChat account to read Grande Meadow Developments Ltd v Clark Road Developments Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NZHC 1394
Decision Date: 13 June 2018

CaseChat Overview and Summary

Grande Meadow Developments Ltd, New Zealand General Real Estate Ltd, and Kingstone Property Ltd (the applicants) sought an order for interim measures restraining Clark Road Developments Ltd (the respondent) from applying for title over its development at Hobsonville, Auckland, under the Arbitration Act 1996 (the Act). The applicants sought specific performance of a Development Cooperation Agreement (DCA) in arbitration. They contended the respondent had breached its obligations under the DCA by refusing to use the contractual machinery for selecting a contractor to provide common infrastructure. The applicants were concerned that if the respondent completed its infrastructure in stages, their own infrastructure would not be able to connect with it. The court was required to decide whether the harm to the applicants not adequately reparable by an award of damages, whether the harm substantially outweighed the harm to the respondent if the measure was granted, and whether there was a reasonable possibility that the applicants would succeed on the merits of the claim.

The court declined to grant the order for interim measures sought. It found there was a reasonable prospect the applicants would succeed at arbitration. However, the harm to the applicants was not adequately reparable by an award of damages and granting the order sought may increase the risks about which the applicants were concerned. The court was not satisfied the harm to the applicants would substantially outweigh the harm likely to result to the respondent from the order.

The court declined to grant the order for interim measures sought. The reasons were recorded on 13 June 2018.

Orders