GREEN & McCAHILL HOLDINGS LIMITED AND EVAN CHRISTOPHER WILLIAMS ARA WEITI DEVELOPMENT LIMITED

[2025] NZHC 208

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1385

[2025] NZHC 208

BETWEEN

GREEN & McCAHILL HOLDINGS LIMITED
Plaintiff

AND

EVAN CHRISTOPHER WILLIAMS

First Defendant

ARA WEITI DEVELOPMENT LIMITED

Second Defendant

Hearing:

On the papers

Counsel:

B Dickey, K Morrison, A Manuson, K Tubbs and M Tan for the Plaintiff

D Chisholm KC, MHL Morrison, CJH Fraser, M Sun and SE Tindale for First to Fourth Defendants

Judgment:

18 February 2025

JUDGMENT OF BECROFT J

[Discharge of caveat orders and costs]

This judgment was delivered by me on 18 February 2025 at 4pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors/Counsel:

Meredith Connell, Auckland Morrison Partners, Auckkland

B Dickey, Bankside Chambers, Auckland

D Chisholm, Waterloo Chambers, Auckland MHL Morrison, Bankside Chambers, Auckland M Sun, Shortland Chambers, Auckland

GREEN & McCAHILL HOLDINGS LIMITED v WILLIAMS & ORS [2025] NZHC 208 [18 February 2025]

ARA WEITI BAY DEVELOPMENT LIMITED

Third Defendant

ARA WEITI INVESTMENTS LIMITED

Fourth Defendant

LAMBTON QUAY PROPERTIES NOMINEES LIMITED

Fifth Defendant

CLEARWATER CAPITAL PARTNERS DIRECT LENDING
OPPORTUNITIES FUND LP and
CLEARWATER NZ1 SMA LIMITED
Sixth Defendants

What is this application about?

[1]    On 23 December 2022,  Harvey J made orders (“the caveat orders”) under     s 146 of the Land Transfer Act 2017 (“Act”). These orders allowed Green & McCahill Holdings Limited (“GMHL”) to relodge caveats over land owned by Ara Weiti Developments Limited (“AWDL”) and Ara Weiti Bay Development Limited (“AWBDL”).

[2]    AWDL and AWBDL (together the “applicants”) now apply that those orders be “rescinded and discharged”. They also seek costs. I note that counsel for the applicants have advised that GMHL never relodged caveats following Harvey J’s judgment. However, given the orders still exist allowing it to do so, the applicants are nevertheless entitled to seek the recission and discharge of those orders.

History

[3]    There is a complicated history. These caveats relate to a substantive proceeding with GMHL as plaintiff and the applicants, among others, as defendants.

[4]    That proceeding went to an eight-week trial in mid-2024. I was the trial Judge. Judgment remains reserved. The judgment will be delivered as soon as possible but likely not before the end of March 2025 at the earliest. Suffice to say, I am familiar with the facts relevant to this application. I need not set them out in any detail here.

[5]    Very briefly, GMHL previously owned the land now subject to the “caveat orders”. The land was the subject of a huge subdivision development, involving GMHL (controlled by the Liu family from Taiwan) as landowner and several companies incorporated and directed by Mr Evan Williams—an Auckland property developer. The development eventually ran into difficulties and has now stalled. According to Mr Liu, this was because of Mr William’s mismanagement and ineptitude. According to Mr Williams, Mr Liu prematurely “tanked” the development before it could be completed. Eventually, part of the land owned by GMHL was sold to the applicants in a mortgagee sale in June 2020. GMHL challenges that sale, among other things, in the substantive proceeding.

[6]    It is necessary to set out the history of the “caveat orders”. On 21 July 2020, GMHL lodged caveats over the various titles held by the applicants. On or about 7 August 2020, the applicants applied to the Registrar to lapse the caveats pursuant to  s 143 of the Act.

[7]    GMHL then applied to the High Court for an order that the caveats not lapse. It relied on an alleged joint venture between itself and Mr Williams. Mr Williams is and was a director of the applicants. It claimed he breached the fiduciary duties he owed to GMHL, and that knowledge was attributable to the applicants such that they owned the titles on constructive trust for GMHL, giving GMHL a caveatable interest.

[8]    Around the same time, on 21 August, GMHL filed its first statement of claim in the substantive proceeding. Breach of fiduciary duty by the first defendant, Mr Williams, and knowing receipt by the applicants (and one other entity) was pleaded as the first cause of action.

[9]    Associate Judge Andrew, as he then was, declined GMHL’s application that the caveats not lapse in a judgment dated 24 February 2021.1 The caveats subsequently lapsed

[10]   GMHL appealed to the Court of Appeal. In support of its appeal, it filed a draft copy of an amended and consolidated statement of claim in the substantive proceedings. In addition to the previously pleaded breach of fiduciary duty and knowing receipt claims (which were divided into separate causes of action), the draft indicated that GMHL would also plead knowing assistance and constructive trust against the applicants and other defendants. These causes of action were said to further support the alleged caveatable interest. Those causes of action were formally added when GMHL filed its amended and consolidated statement of claim with the High Court on 30 June 2022.

1      Green & McCahill Holdings Limited v Ara Weiti Bay Development Limited [2021] NZHC 219, (2021) 21 NZCPR 844.

[11]   GMHL’s appeal to the Court of Appeal was successful. In a comprehensive judgment, released on 1 June 2022, the Court determined that GMHL’s claim for knowing receipt was reasonably arguable—weak but not inarguable—and therefore capable of supporting a caveat.2 However, instead of reimposing the caveats unconditionally, the Court of Appeal remitted the issue of reimposing the caveats and what conditions would attach to the caveats to the High Court.3

[12]   In the High Court, Harvey J heard argument from each side as to the appropriate conditions to impose and released his judgment in December 2022. He determined to impose the conditions advocated for by the applicants as well as the other defendants in the substantive proceeding, and opposed by GMHL, namely that:

GMHL provides either:

(i)  partial releases of such Caveats to enable individual titles to be sold; or

(ii)  consents to the registration of instruments required for the development of the relevant properties to continue:

provided that in the case of sales, the net sale proceeds (after standard sale costs, including rates, costs of sale, and payment of any commissions, including sale commissions payable to NZ1 Management Limited) are paid to the relevant mortgagees, being Clearwater Capital Partners Direct Lending Opportunities Fund LP and/or Clearwater NZ 1 SMA Limited and/or Lambton Quay Properties Nominee Limited.

[13]   On 8 December 2023, GMHL filed its second amended and consolidated statement of claim. It was this claim that was the basis of last year’s substantive trial. That statement of claim abandoned each of the four causes of action it had relied on in support of the imposition of caveats. The only remaining causes of action are negligent misstatement; misleading and deceptive conduct under the Fair Trading Act 1986; breach of mortgagee duties; and, as an alternative to the third cause of action, equitable contribution.

2      Green & McCahill Holdings Limited v Ara Weiti Bay Development Limited [2022] NZCA 218, (2022) 23 NZCPR 259.

3 At [132].

Application for recission and discharge of the “caveat orders”

[14]   In short, the applicants argue that because GMHL has abandoned all its claims upon which the “caveat orders” were based, the basis for those orders has fallen away so that the orders ought now to be rescinded and discharged. GMHL has not consented to the discharge despite multiple requests from the applicants’ solicitors. Also, it has not filed any opposition to the current application. Four months have now passed since the application was made.

[15]   The applicants’ submissions are logical and coherent, and I accept them. From the time that GMHL filed its second amended and consolidated statement of claim, the basis for the caveats has fallen away. GMHL no longer claims any interest in the land capable of supporting a caveat under s 138 of the Act.

[16]Therefore, I am prepared to order that the “caveat orders” be discharged.

Application for costs

[17]   The applicants also apply for costs and disbursements for the steps taken in the High Court in respect of the caveats. Those steps include the initial application before Associate Judge Andrew, the consideration of the conditions to be imposed before Harvey J, and this application for recission and discharge.

[18]   In respect of the hearing before Associate Judge Andrew, the applicants note that the parties fixed the costs and disbursements at $17,500 by consent following the Associate Judge’s decision. Second, the applicants have then calculated scale costs on a 2B basis for the “caveat orders” before Harvey J at $7,588.25. And thirdly, on the same basis, have calculated costs for this application at $6,214. However, the applicants seek increased costs in respect of the “caveat orders” and this application. Increasing the calculated scale costs for those matters by 50 per cent would bring the total costs for those steps to $20,703.38.

[19]   The applicants also seek a single disbursement of $565.22 being the filing fee for this application.

[20]No response as to costs has been received from GMHL either.

[21]   My view is that it is appropriate to award costs to the applicants for all three steps taken in the High Court, especially as the “first step costs” have been previously agreed by consent. After all, it now seems clear that there is no caveatable interest and, on the facts as now pleaded by the respondent, there never was. However, I am only prepared to grant scale 2B costs for the second and third steps, not the increased costs, as sought. I do not see a basis for increased costs. I also approve the cost for filing this application.

Result

[22]   I order that the orders made by Harvey J in his judgment of 23 December 2022 be rescinded and discharged.

[23]I grant costs of $31,302.25 in favour of the applicants. I also award them

$565.22 as a disbursement for the filing of this application.

Becroft J