Hill v Elimelech
[2018] NZHC 449
•15 March 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CIV-2017-485-811
[2018] NZHC 449
BETWEEN JANIS LYNNE HILL AND GRAHAM JOHN TICKLE
Appellants
AND
SIMANTOV ELIMELECH, EFRAT DORON LOCATI AND TRAFALGAR TRUSTEE CORPORATION LIMITED
First Respondents
AND
MARJORIE LENORA JONES, GRAEME MICHAEL JONES AND PUBLIC TRUST
Second Respondents
AND
BEVAN JAMES HOLLOWAY AND NICOLA LOIS HOLTOM
Third Respondents
Hearing: 14 February 2018 Appearances:
P S J Withnall for Appellant R Stewart for Respondent
Judgment:
15 March 2018
JUDGMENT OF GRICE J
[1] This is an appeal from a judgment of the District Court dated 1 September 2017 in which proceedings were stayed by the Judge due to the function of an implied dispute resolution clause in an easement instrument.1
[2]The background to the dispute is set out in the decision of the District Court:2
1 Hill v Elimelch [2017] NZDC 17227.
2 At [1]-[4].
HILL AND TICKLE v ELIMELECH, LOCATI AND TRAFALGAR TRUSTEE CORPORATION LIMITED [2018] NZHC 449 [15 March 2018]
[1] A shared vehicle access way in Whitby is subject to a registered right of way easement in favour of the applicants’ land at 32 Flotilla Place and in favour of the first, second and third respondents’ land at 30 Flotilla Place, 35 Flotilla Place and 31 Flotilla Place respectively.
[2] A dispute has arisen between the parties who have a registered interest under the easement regarding the use of the shared vehicle access way that I will refer to as Lot 201.
The substantive dispute
[3] The applicants claim the right of way created by Easement Instrument 9408783.7 (the Registered Easement) contains the rights and powers implied in the vehicular rights of way by Schedule 5 of the Property Law Act 2007 (the PLA).
[4] The applicants assert the rights conferred by the right of way easement are the usual rights to cross back and forth over Lot 201 and no more. The applicants assert there is no right to remain stationary, other than momentarily, to park vehicles or to leave any other items such as trailers anywhere on Lot 201, which includes the kerb and grass area adjacent to the access way.
[3] The District Court Judge found that a dispute resolution clause was implied into the easement instrument by virtue of the function of cl 14, sch 4, of the Land Transfer Regulations 2002. The dispute resolution clause operated as an Arbitration Agreement and so entitled the respondents to a stay of the proceedings. 3
[4] It is common ground that if the dispute resolution clause had been engaged, it would entitle the respondents to a stay of these proceedings.4
Grounds of Appeal
[5] The appellants advance two grounds of appeal. These are that the Judge erred in:
(a)finding the appellants did not have a choice to bring the proceedings in the District Court under s 313 of the Property Law Act in respect of their rights under Schedule 5, due to the Judge’s interpretation of the registered easement; and
3 Arbitration Act 1996, sch 1, art 8; Hill v Elimelch, above n 1, at [56].
4 Arbitration Act 1996, sch 1, cl 5 ch 2.
(b)interpreting s 298 of the Property Law Act as not entitling the appellants to separately and alternatively bring proceedings in the District Court under s 313 as per s 315, in respect of their rights under Schedule 5.
[6] The first ground depends on the construction of the registered easement instrument and, in particular, the terms implied by reference into the right of way created in the instrument. The second argument does not depend on the construction of the easement instrument, but rather depends on the easement being an “access lot” existing outside the terms of the easement instrument and only governed by the Property Law Act provisions concerning vehicular rights of way.
The Registered Easement
[7] The right of way is an easement created by a registered easement instrument granted under s 90A and s 90F of the Land Transfer Act 1952. Several other easements are created in the same instrument. The other easements relate to various utilities and related services.
[8] The easement instrument was registered on 24 July 2013.5 The servient tenement over which the easement is granted is Lot 201 on deposited plan 461997. The lots which have the use of the easement, or the dominant tenements, are Lots 1 to 5 on DP 461997. The easement instrument is noted and registered against the titles of each of the dominant tenements. The easement is over Lot 201 which is owned by the five registered proprietors of the dominant tenements as joint tenants.6
[9] The easement Lot 201 is formed as a driveway at the end of Flotilla Place, Whitby which provides access to Lots 1 to 5 of DP 451997. Lot 2, Lot 3 and Lot 5 are owned by the appellants. The respondents own Lot 1. The owners of Lot 4 are not a party to these proceedings. The dominant tenement lots all have addresses on Flotilla Place.
[10]The relevant part of the registered easement instrument provides:
5 Registered Easement Instrument No 9408783.7.
6 The titles to dominant tenements note both the fee simple over their relevant lot as well as a 1/5 share over Lot 201.
Easement or profits à pendre rights and powers (including terms, covenants and conditions)
Unless otherwise provided below, the rights and powers implied in specified classes of easement are those prescribed by the Land Transfer Regulations 2002 and\or7 Schedule 5 of the Property Law Act 2007.
[11] This provision implies various rights and powers set out in sch 4 of the Land Transfer Regulations 2002 (LTR sch 4) and in sch 5 of the Property Law Act (PLA sch 5).
[12] PLA sch 5 implies covenants into grants of vehicular rights of ways. A vehicular right of way is defined as:8
vehicular right of way means an easement—
(a)entitling the owner or occupier of the land benefited by the easement to pass with vehicles over the land burdened by the easement; and
(b)created by—
(i)an instrument registered under the Land Transfer Act 1952; or
(ii)a contract or arrangement that is otherwise enforceable at law or in equity against the person bound
[13] These implied covenants in PLA sch 5 include the right for the parties to pass and repass along the land with or without vehicles, machinery and equipment.9 Clause 2 also sets out rights to establish and maintain a driveway.10 Clause 3 specifically covers rights to have the land kept clear of obstructions (including parked vehicles), for contributions toward cost of establishment and upkeep of the driveway and for the recovery of costs to repair damage caused by one party.11 The land must be restored by any party who has done work on the right of way.12
[14]It is common ground that this is a vehicular right of way.
7 Emphasis added.
8 Property Law Act 2007, s 4, definition of “vehicular right of way”.
9 Sch 5, cl 1.
10 Sch 5, cl 2.
11 Sch 5, cl 3.
12 Sch 5, cl 3.
[15] On the other hand, the LTR sch 4 implies rights and powers which deal with various classes of easements, including rights of way.13
[16] The implied terms set out in the PLA sch 5 overlap with those provided in the LTR sch 4 in respect of vehicular rights of way. By way of example, the PLA sch 5 does not specifically provide for the right of domestic animals (or if the servient land is rural, land farm animals) to go over and along the vehicular right of way. It is provided for in the LTR sch 4.14 Both schedules provide for a right to recover the cost of repairing any damage by one party to the driveway, but the LTR sch 4 specifically provides for the apportionment of the costs of repair and maintenance where the costs of repair are only partly attributable to one party.15
[17] The LTR sch 4 at cl 13 and 14 provides for default and dispute resolution processes if the obligations are not met.16 These clauses are attached as a schedule to this decision. No provisions concerning default process or dispute resolution are set out in the PLA sch 5.
Submissions
[18] The appellants submit that they can choose whether or not they use the dispute resolution process provided for in cl 14 of the LTR sch 4, or they can take the dispute to the District Court under s 313 of the Property Law Act. The appellants argue that once they make that choice by filing the proceedings in Court, the respondents are precluded from relying on the LTR sch 4 rights and powers, and in particular the dispute resolution procedure in cl 14.
[19] The appellants contend that the covenants in the PLA sch 5 apply specifically to “vehicular rights of way” and so override the more general provisions for various easements including rights of way in the LTA sch 4. They are, therefore, entitled to make the choice as they are the ones seeking to enforce their rights.
13 Land Transfer Regulations 2002, sch 4, cl 6.
14 At sch 4, cl 6(2).
15 Property law Act, sch 5, cl 2(c); Land Transfer Regulations, sch 4, cl 11(6), sch 4. There are a number of other examples and it is not necessary to detail those for the purposes of this judgment.
16 Clause 13 deals with Default and Clause 14 with Dispute Resolution.
[20] In aid of their interpretation that the easement instrument gives them a unilateral choice to proceed to court under the Property Law Act, the appellants say:
(a)The PLA sch 5 implies into vehicular rights of way parallel covenants to those under the LTR sch 4, which was enacted earlier in time. Therefore, Parliament could not have intended that the court’s jurisdiction refined in s 313 of the Property Law Act would be denied by the function of the LTR sch 4. Parliament had the opportunity to enact an arbitration provision as part of the PLA sch 5, or link the dispute resolution clause in the LTR sch 4 to the PLA schedule, but did not;
(b)The words “and/or” as contained in the easement instrument, confer a choice on the parties as to whether they rely on the LTR sch 4 or the PLA sch 5. The party seeking to enforce their rights has the choice;
(c)Vehicular rights of way are a specific type of easement. They are defined under the Property Law Act, and therefore the PLA sch 5 applies alone and takes priority in that type of easement.
[21] The appellants say s 313(1)(a), (b) and (h) of the Property Law Act applies to this dispute as the chosen enforcement process. That section says:
313 Court may enforce easements and positive or restrictive covenants
(1)In determining a question or dispute concerning the existence or effect of an easement, positive covenant, or restrictive covenant, a court may make an order, on any conditions the court thinks fit, concerning all or any of the following matters:
(a)the existence of an easement, positive covenant, or restrictive covenant benefiting or burdening land:
(b)the enforceability of an easement, positive covenant, or restrictive covenant by or against any person, and whether under this Act or otherwise:
…
…
(h) any other matters arising in relation to a question or dispute concerning the existence or effect of an easement, positive covenant, or restrictive covenant.
[22] It is useful to bear in mind that the predecessor to the Property Law Act 2007, the Property Law Act 1952, also implied covenants into vehicular rights of way.17 This was in force at the time that the easement instrument in this case was executed.
[23] As a separate and alternative submission, the appellants argue that the easement is over land which is considered a separate lot within the definition of “access lot” for the purposes of s 298 of the Property Law Act. “Access lot” is defined as:18
access lot, in sections 298 and 315 and in relation to a subdivision, means a separate allotment—
(a)in the subdivision; and
(b)that was created to provide access—
(i)from all or any of the other allotments of the subdivision; and
(ii)to an existing road or street
[24] Under s 298 of the Property Law Act, proprietors of an access lot are given the same rights as those provided for in sch 5 in relation to the vehicular right of way. These rights are able to be enforced by the District Court.19 The relevant section provides:
315 Application of sections 313 and 317, etc, to access lots
Sections 313, 314, and 316 to 318 apply, subject to the following modifications, to an access lot that is or includes a driveway or proposed driveway:
(a)a reference in section 313, 314, 316, or 317 to an easement, or the terms of a vehicular right of way, must be treated as including a reference to the rights under section 298 of the proprietors of the access lot (whether those rights are modified by an order under section 317 or not):
17 Section 126(f)(i) and Sch 9, cl 1 of the Property Law Act 1952 (repealed on 1 August 2008 by virtue of s 366 of the Property Law Act 2007).
18 Property Law Act, s 4, definition of “access lot”.
19 Section 315.
[25] The appellants submit that the Judge did not grapple with their submission that as the applicants, they could choose to rely on s 298 of the Property Law Act alone to the exclusion of the LTR schedule provisions referred to in the registered easement instrument. Therefore it follows that the correct venue for determination of disputes is the court under s 313 of the Property Law Act.
The issues
[26]The issues before me are:
(a)Is the dispute resolution clause implied into the easement instrument as per the function of the LTR sch 4, cl 14?
(b)Does the proper construction of the wording of the easement instrument mean the appellants have the choice of relying on the Property Law Act and the PLA sch 5 to the exclusion of the LTR sch 4 rights and powers, and does this choice bind the respondents?
(c)Does the fact that the easement is over an “access lot” allow the appellants to choose to bring an action in the court relying on s 313 of the Property Law Act?
The District Court judgment
[27] The Judge found that the dispute resolution processes implied into the easement instrument under cl 14 of the LTR sch 4 were mandatory. The dispute resolution clause says that the party initiating the dispute must provide particulars, meet and try and resolve the dispute using informal dispute resolution techniques and, if the dispute is not resolved, “must” refer the dispute to arbitration.20
[28] In contrast, the Judge said that s 313 of the Property Law Act states the court “may” make orders. This allows a discretionary power to the court which could be overridden by the mandatory provisions of the LTR sch 4 dispute resolution clause.
20 Land Transfer Regulations 2002, sch 4, cl 14.
[29] The Judge also adopted the reasoning set out in Perpetual Trustee Ltd v Turner.21 In that case the District Court Judge held the existence of s 313 of the Property Law Act, which allowed the court jurisdiction to deal with a dispute concerning an easement, did not of itself indicate that the matter was not able to be determined by arbitration under the LTR sch 4 dispute resolution clause.22 He rejected the contention by the appellants they could chose to exclude the provision of the LTR sch 4.
[30] In the current decision under appeal the Judge held that the dispute resolution clause in the LTR sch 4 applied to the dispute. The Judge found there was a genuine dispute. The dispute resolution clause was therefore engaged and so the proceedings filed in the District Court were stayed.
Approach to appeal
[31] It is common ground that an appeal under s 124 of the District Court Act 2016 is a general right of appeal. The appeal court is entitled to form its own assessment on the matter on the issue afresh.23 There were no findings of contested fact or credibility made by the District Court Judge.24
[32] It is also not contested that if I find that the dispute resolution clause in the LTR sch 4 was engaged it would follow that the proceedings were stayed. This concession is appropriate given Justice Brown’s comments in Davey v Davey & Baker.25 He said that if the dispute resolution clause in the LTR sch 4 it operated as an agreement to arbitrate. It was therefore not open to the court to elect to retain jurisdiction over claims on the grounds that the court was in as good a position as an arbitrator to consider the issue or because the matter in dispute was a jurisdictional issue. His Honour said that only if there was in reality no dispute may the court decline to order a stay of the proceeding. This finding was not upset on appeal.26
21 Perpetual Trustee Ltd v Turner DC Timaru CIV-2011-076-74, 22 August 2012.
22 At [15].
23 Austin Nicols & Co Inc v Ching Loadstar [2007] NZSC 103, [2008] 2 NZLR 141.
24 No oral evidence was called.
25 Davey v Davey & Baker [2015] NZHC 2282 at [90] & [91].
26 Davey v Baker [2016] NZCA 313 at [33].
Issue 1: is the dispute resolution clause implied into the easement instrument?
[33] The easement in question is created by an easement instrument under s 90A and 90F of the Land Transfer 1952.27 Section 90A specifies the matters which must be included in an easement created by an easement instrument, such as the rights and powers that will apply to any easement to be created.28 Section 90D provides for Land Transfer Regulations to specify different classes of easements and for the rights and powers to be implied in them. An easement instrument may specifically override or alter the rights and powers implied under the LTR sch 4.29
[34] The easement instrument itself did not specifically vary or negative the dispute resolution clause. It recorded that “unless otherwise provided below” the rights and powers prescribed in the LTR sch 4 “and/or” the PLA sch 5 were implied into the easement instrument. Nothing else was “otherwise provided below” in the easement instrument.
[35] Therefore, my conclusion on issue 1 and the starting point is that the LTR sch 4 dispute resolution clause was implied into the easement instrument. The question is, were the appellants able to choose to exclude its operation?
Issue 2: can the appellants choose to exclude the operation of the dispute resolution clause?
[36] The meaning of words in the easement instrument depend on the construction of the words used in the instrument as a whole, according to their natural meaning, read in the light of the surrounding circumstances existing at the date when the instrument was executed.30 Recent developments indicate there will be some limits on relying on extrinsic material concerning the surrounding circumstances of the easement at the date of execution where they could be known only to the original parties, or that are not reasonably accessible to a third party who relies on the Land Transfer register. The reason for this is that third parties who have acquired the land
27 For present purposes s 90F is not relevant to this matter.
28 Land Transfer Act 1952, s 90A(3)(d).
29 Section 90D(3).
30 D W McMorland McMorland on Easements, Covenant and Licenses (2nd ed, LexisNexis, Wellington) at [3.1.1].
will not be on notice as to the private arrangements between the original grantor and grantee.31 In this case, extrinsic aids to interpretation are not needed.
[37] The rights and powers provided for in the LTR sch 4 and the covenants in the PLA sch 5 are the only rights implied into the easement instrument. The other legislative provisions in the Property Law Act are specifically referred to. There is nothing in the Property Law Act sch 5 which requires that the covenants provided in that schedule are to be enforced by the processes in s 313 or its predecessor which was in force at the time of the execution of this instrument.
[38] To imply a right to choose would require the implication of a contractual term that allowed:
(a)a party to choose the process by which they and the other party would resolve their dispute when it arose, and;
(b)one party could self-select or become the ‘choice maker’ by filing Court proceedings first.
[39] The interpretation of a contractual term is based on the meaning that the term would convey to a reasonable person with all the background knowledge that was available to the parties at the time the contract was made.32 The relevant phrase “and/or” would not convey to a reasonable person with the requisite knowledge that the appellants could simply choose which dispute resolution process to resolve their dispute by simply being the first to file proceedings or otherwise taking it upon themselves to become the party to choose which process would apply. In all disputes concerning rights of way between parties each side seeks to enforce their rights. It is not realistic to say that one party may choose to ignore a prescribed dispute resolution process. Of course the parties may agree to go to court. This may occur by one party
31 Hinde, McMorland & Sim Land Law in New Zealand (Loose-leaf ed, LexisNexis) at [16.037] 141,055.
32 Investors Compensation Scheme Ltd v West Bromich Building Society [1998] 1 WLR 896. See generally Bisley and Ryourn Contract Implied Terms (New Zealand Law Society CLE Ltd, Wellington, 2017).
commencing proceedings and the other engaging in those proceedings. This has not occurred here.
[40] Further, the courts are reluctant to ‘rewrite’ a contract by implying terms to fill in the blanks like those found in the easement instrument. On that topic, Lord Hoffman in Attorney-General of Belize v Belize Telecom Ltd said:33
17.The question of implication arises when the instrument does not expressly provide for what is to happen when some event occurs. The most usual inference in such a case is that nothing is to happen. If the parties had intended something to happen, the instrument would have said so. Otherwise, the express provisions of the instrument are to continue to operate undisturbed. If the event has caused loss to one or other of the parties, the loss lies where it falls.
18.In some cases, however, the reasonable addressee would understand the instrument to mean something else. He would consider that the only meaning consistent with the other provisions of the instrument, read against the relevant background, is that something is to happen. The event in question is to affect the rights of the parties. The instrument may not have expressly said so, but this is what it must mean. In such a case, it is said that the court implies a term as to what will happen if the event in question occurs. But the implication of the term is not an addition to the instrument. It only spells out what the instrument means.
[41] Finally s 297 of the Property Law Act says the rights and powers in the LTR sch 4 which are implied into easement instruments under s 90D of the Land Transfer Act prevail if there are any inconsistencies with any of the covenants implied from the PLA sch 5.34
[42]On the natural meaning of the words in the easement instrument:
(a)The LTR sch 4 rights and powers “and/or” the PLA sch 5 covenants are implied;
(b)The “and” means both the rights and powers in both schedules are implied;
33 Attorney-General of Belize v Belize Telecom Ltd [2009] UKPC 10 at [17]-[18].
34 Property Law Act, s 297(6).
(c)The “or” implies a right or power from one schedule where the other does not provide for that right or power; if it meant “or at the choice of one party” that would need to be explicit.
(d)There is no dispute resolution clause in the PLA sch 5. The PLA sch 5 covenants are mainly concerned with the use of the easement.
(e)The operative dispute resolution clause is that in the LTR sch 4.
[43] The appellants also submit that the wording of s 315 of the Property Law Act suggests it is a more appropriate provision to deal with the present dispute which is concerned with the “scope of rights”. In that respect, s 315 is related to the court determining the “existence or effect” of the easement rather than the more general ambit of the dispute resolution clause. In my view, the dispute resolution clause clearly covers the present dispute whether it is formulated as a “scope of rights” dispute or otherwise. I do not consider this point assists the appellants’ interpretation.
[44] In short, there is nothing in the easement instrument which specifies or implies a right to choose to go to court under the Property Law Act, whereas the dispute resolution clause is implied into the instrument. I conclude on issue 2 that the appellants cannot unilaterally exclude the LTR schedule rights and powers implied into the easement instrument.
Issue 3: does the fact the easement is over an access lot allow the appellants to choose the bring an action in the District Court?
[45] I now turn to the third issue which is the appellants claim that the easement is over an access lot which is governed by s 298 and they can therefore choose to trigger s 313 of the Property Law Act exclusively. Section 298 provides:
298Rights of proprietors of access lot that is or includes driveway or proposed driveway
(1) This section applies to the proprietors of an access lot that is or includes a driveway or proposed driveway.
(2) Each of those proprietors has, in common with the rest of them, the same right to pass and re-pass over and along the access lot that the grantor
and grantee of a vehicular right of way have (in common with one another) in respect of that right of way under clause 1 of Schedule 5.
(3) Each of those proprietors has against one another in respect of the access lot the same rights that the owners and occupiers of the land for the benefit of which, and the land over which, a vehicular right of way is granted have against one another in respect of that right of way under clause 2 of Schedule 5.
(4) Clause 3 of Schedule 5 applies to each of those proprietors in respect of the access lot in the same way as it applies to persons bound by, and persons entitled to enforce, in either case in respect of a vehicular right of way, the covenants in Schedule 5.
[46] The appellants argue that s 315 of the Property Law Act implies that the court has the jurisdiction under s 313 to deal with easement disputes and in particular their dispute. Section 315 makes it clear for certain purposes, including enforcement by the Court under s 313, the proprietors of an access lot have the same rights as if they were a registered easement.35 Nothing in the Property Law Act as it relates to “access lots” excludes the implied rights and powers otherwise specified in an easement instrument. It would require clear words to exclude the rights and powers specifically implied in the easement instrument. That the lot on which the driveway sits is an access lot does not of itself affect the terms of the instrument creating the easement.
[47] Therefore, I conclude that the dispute resolution clause applies to the present dispute. The appellants cannot choose to exclude its application. That view is reinforced by the following:
(a)At the time the instrument was executed there was a dispute resolution clause implied into it by s 90D of the Land Transfer Act 1952, as per cl 14 of sch 4 of the Land Transfer Regulations 2002.
(b)To construe the easement instrument as allowing a party the choice to exclude a set of implied provisions would require express words in legislation or in the easement instrument.
35 Property Law Act 2007, ss 315(a), 315(b) &318.
(c)That the right of way created by the easement instrument is over an access lot does not exclude or vary the terms of the easement instrument which continue to apply.
(d)The implied dispute resolution clause provides for a process of good faith meetings to resolve disputes, followed by arbitration.36 This approach provides for the private resolution of disputes using alternative dispute resolution processes more appropriate for neighbourly disputes and is better for the preservation of relationships than the more formal and public court process.37
(e)If the easement instrument was construed to allow either party to choose which set of rights and powers to enforce, it would unnecessarily complicate the process by creating a contest in determining who had the “right to enforce” and therefore the right to make the choice. It would generate uncertainty if the party who was first in the court door had the choice. In most cases (as in this case) each party will be seeking to enforce what they see as their rights under the easement instrument whether as applicant or respondent.
[48] I conclude that the appeal should be dismissed. I reach that conclusion following different reasoning to that of the District Court Judge. However, her reasons support the conclusion I have reached.
Conclusion
[49] For completeness, I have dealt with the appellant’s argument that the easement is over an access lot and so the appellants may choose to engage only the PLA sch 5 and provisions of the Property Law Act to the exclusion of the LTR sch 4. The appellant’s pleadings had not been amended to reflect that argument. At counsels’ suggestion I have dealt with that argument as if the pleadings had been amended.
36 Land Transfer Regulations 2002, sch 4, cl 14.
37 Hinde McMorland & Sim, above n 31, at [16.037], citing Hughes v Riley [20015] EWCA CIV 1129 at [29]-[30].
[50] There is no reason that costs should not follow the event. Costs are awarded in favour of the respondent in this appeal on a category 2 B basis. This is appropriate in this case. No issue was taken with that course by counsel. If details cannot be agreed the Registrar may fix the final sum.
Grice J
Solicitors:
Greenwood Roche, Wellington IzardWeston Lawyers, Wellington
SCHEDULE (excerpt from the Land Transfer Register 2002, sch 4, clauses 13 and 14)
13Default
If the grantor or the grantee does not meet the obligations implied or specified in any easement,—
(a)the party not in default may serve on the defaulting party written notice requiring the defaulting party to meet a specific obligation and stating that, after the expiration of 7 working days from service of the notice of default, the other party may meet the obligation:
(b)if, at the expiry of the 7-working-day period, the party in default has not met the obligation, the other party may—
(i)meet the obligation; and
(ii)for that purpose, enter the servient land:
(c)the party in default is liable to pay the other party the cost of preparing and serving the default notice and the costs incurred in meeting the obligation:
(d)the other party may recover from the party in default, as a liquidated debt, any money payable under this clause.
14 Disputes
If a dispute in relation to an easement arises between parties who have a registered interest under the easement,—
(a)the party initiating the dispute must provide full written particulars of the dispute to the other party; and
(b)the parties must promptly meet and in good faith try to resolve the dispute using informal dispute resolution techniques, which may include negotiation, mediation, independent expert appraisal, or any other dispute resolution technique that may be agreed by the parties; and
(c)if the dispute is not resolved within 14 working days of the written particulars being given (or any longer period agreed by the parties),—
(i)the dispute must be referred to arbitration in accordance with the Arbitration Act 1996; and
(ii)the arbitration must be conducted by a single arbitrator to be agreed on by the parties or, failing agreement, to be appointed by the President of the New Zealand Law Society (being the New Zealand Law Society that has its headquarters closest to the land).
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