Hull v Calvert

[2019] NZHC 154

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-3010

[2019] NZHC 154

BETWEEN

DAVID MARK HULL, MICHELLE KAREN HULL and TRUSTEE MANAGEMENT LIMITED
Judgment Creditor

AND

JOHN BARRY CALVERT

Judgment Debtor

Hearing:

7 February 2019

Appearances:

L H George and K A Logan for the Judgment Creditors No appearance for the Judgment Debtor

S C Bird for Top Energy Ltd

Judgment:

14 February 2019

JUDGMENT OF GAULT J

This judgment was delivered by me on 14 February 2019 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Counsel/Solicitors:

Mr D M Hughes, Ms L M Van, Ms L H George and Ms K A Logan, Anthony Harper, Solicitors, Auckland

Mr R C Mark, Solicitor, Kerikeri

Mr M Heron QC, Barrister, Auckland

Mr S Bird, Greenwood Roche, Solicitors, Auckland

HULL v CALVERT [2019] NZHC 154 [14 February 2019]

[1]                 The applicants are trustees of the Hull Family Trust. They seek to enforce an earlier judgment of this Court against the judgment  debtor,  John  Barry  Calvert (Mr Calvert). That judgment, for $672,297.12 plus GBP502.05, was entered by way of summary judgment on 21 March 2017.

[2]                 The applicants obtained a charging order on 12 May 2017 against Mr Calvert’s interest in a block of land situated on Whakataha Road, Waimate North, Northland (the land).1 The amount charged is $672,297.12. The land was valued at $845,000 (plus GST, if any) in September 2018.

[3]                 There has been no appearance for Mr Calvert in the proceeding, either in relation to the application for summary judgment or since. It seems Mr Calvert no longer lives in New Zealand. He could not be served personally, but has been served in the United Kingdom in accordance with an order for substituted service.

[4]                 The applicants now seek orders enabling a sale of the land such that the proceeds can be used towards satisfaction of the judgment debt.

[5]                 The registered proprietors of the  land  are  Mr  Calvert,  Marites  Calvert  (Ms Calvert) and James Hay Pension Trustees Ltd (James Hay) (as joint tenants2).

[6]The applicants’ enquiries indicate that:

(a)Ms Calvert is the estranged wife of Mr Calvert.

(b)James Hay is a pension fund registered in the United Kingdom.

(c)The registered proprietors of the land were, at a time, trustees of     Mr Calvert’s United Kingdom pension scheme trust, the Stratford- Upon-Avon Butterfly Farm Executive Pension Scheme (the Pension Scheme).

1      Lot 1 on Deposited Plan 359752 containing an area of 24.0600 hectares more or less and contained on Certificate of Title Identifier 243031 (North Auckland Registry).

2      Section 47, Land Transfer Act 2017.

[7]                 The applicants submit that Ms Calvert and James Hay no longer have any interest in the land.

Background

[8]                 On 5 February 2018, the Court made an interlocutory order under r 17.45 of the High Court Rules 2016. It named parties with a potential interest in the land, and ordered them to file an affidavit with the Court stating the nature and details of their interest no later than 20 working days following the date that the last party is served with the order.

[9]                 The Court also gave directions for substituted service. Ms Calvert was served by emailing the documents to her last known lawyer in the United Kingdom. He responded on 10 April 2018 stating:

… I have no instructions from Mrs Calvert. Her last communication (telephoned) on this subject was quite some time ago, when she said I was not to be involved in any way.   That was what I told the lady (presumably     Mrs Hull) who telephoned me from New Zealand.

[10]             Ms Calvert did not file an affidavit stating the nature and details of her interest in the land.

[11]             There was no response from Ms Calvert following service of the present application.

[12]             Nevertheless, there is some evidence indicating that Ms Calvert has no interest in the land.

(a)A Deed of Appointment and Removal of Trustee and of Amendment dated 8 June 2007 indicates that she was removed as a trustee of the Pension Scheme.

(b)Although her English lawyer stated in an email to Top Energy’s lawyer on 11 March 2014 that she remained a trustee, he said that she did not believe she was a beneficiary.

(c)On 14 May 2014 Ms Calvert signed an Authority and Instruction form to transfer the land, but the transfer was never effected as Mr Calvert did not also sign.

[13]             James Hay has confirmed it has no interest in the land. It had transferred its interest to Rowanmoor Group plc (Rowanmoor) on 20 June 2006. It was removed as a trustee of the Pension Scheme by the deed of 8 June 2007 and Rowanmoor was appointed a trustee.

[14]             Rowanmoor has also confirmed it has no interest in the land. It was replaced as a trustee of the Pension Scheme by Colston Trustees Ltd (Colston) by way of Deed of Removal dated 21 February 2011.

[15]             Colston has not filed an affidavit stating the nature and details of its interest in the land, but earlier, on 8 June 2017, Mr Richard Francis of the Curtis Banks Group, which is believed to have administered the Pension Scheme, stated in an email to Michelle Hull that Colston “no longer have involvement” with the Pension Scheme and for any further queries please contact Mr Calvert.

Orders sought

[16]             Ms George, for the applicants, acknowledges that this is a novel situation and proposed two potential avenues to grant a sale order:

(a)an order directing the Registrar-General of Land to alter the record of the title for the land removing Ms Calvert and James Hay so that     Mr Calvert is the sole registered proprietor, pursuant to s 16 of the Land Transfer Act 2017 and/or the Court’s inherent jurisdiction, and then ordering a sale pursuant to r 17.58 of the High Court Rules with net proceeds of sale to be applied towards repayment of the judgment debt (and accrued interest) and any costs order, with any remaining proceeds to be held in Court; or

(b)an order that the land be sold pursuant to r 17.58 and directions as to distribution of the net sale proceeds as follows:

(i)an order that James Hay and Ms Calvert hold the land as bare trustee for Mr Calvert, and directions that the net proceeds of the sale be applied immediately towards repayment of the judgment debt (and accrued interest) and any costs order made; or

(ii)in the alternative:

(A)directions that the net proceeds of the sale of Mr Calvert’s registered interest in the land be applied immediately towards repayment of the judgment debt (and accrued interest) and any costs order made, and

(B)directions that the net proceeds of the sale of James Hay’s and Ms Calvert’s registered interest be held in Court for a period of two months or an alternative period the Court deems appropriate, and

(C)an order that James Hay and Ms Calvert be served with notice of the proceeds being held in Court and be directed to file affidavit evidence in the Court before the expiration of the two month period, or an alternative period as the Court deems appropriate, should they consider that they have an interest in the proceeds, and

(D)an order that at the expiration of the two month period (or the period deemed appropriate by the Court), if James Hay and/or Ms Calvert have not filed evidence claiming an interest in the proceeds, the net proceeds of their respective share in the proceeds be applied towards repayment of the judgment debt (and accrued interest) and any costs order, with any remainder to be held in Court.

[17]             In each case, the applicants seek a direction that any sale of the land is conditional upon the purchaser granting an easement to Top Energy Ltd on the terms set out in an Agreement to Grant Easement. Top Energy Ltd has a registered caveat over the land in relation to an easement, and consents to the sale on this basis.

Land Transfer Act 2017

[18]Section 16 of the Land Transfer Act 2017 provides:

16       Court may make orders relating to records of title

The court may, in any proceeding under this Act, direct the Registrar to—

(a)cancel the record of title for any estate or interest in land or cancel any entry on the record of title; or

(b)create a new record of title for the estate or interest; or

(c)alter the record of title for the estate or interest in the manner directed by the court.

[19]             Ms George submitted that s 16 of the Land Transfer Act 2017, which came into force on 12 November 2018 and replaced s 85 of the Land Transfer Act 1952, has materially broadened the circumstances in which the Court can grant relief. However, Ms George accepted that s 16 applies only “in any proceeding under this Act”. This proceeding is not a proceeding under the Land Transfer Act 2017. It is unnecessary for me to say anything further on the scope of this new provision.

Inherent jurisdiction

[20]             Ms George submitted that I could direct the Registrar-General of Land to remove Ms Calvert and James Hay from title pursuant to the Court’s inherent jurisdiction.  She also referred by analogy to the possibility of a vesting order under  s 52(1)(b) of the Trustee Act 1956, which applies in respect of trust property where a trustee is out of the jurisdiction or cannot be found.

[21]             The inherent jurisdiction was used to grant a sale order in Official Assignee v Mathieson.3 Ms George acknowledged that the facts of that case are not directly

3      Official Assignee v Mathieson [2017] NZHC 2349.

analogous but submitted it is an instance of the Court exercising its inherent jurisdiction to grant a sale order in respect of trust property.

[22]             In that case, the judgment debtor was a former trustee and judgment had been obtained against him as registered proprietor of the property on the basis that he held it entirely for the benefit of the trust, and specifically limiting his personal liability to the assets of the trust and subrogating the judgment creditor to his right to be indemnified from the assets of the trust.

[23]             Gendall J found it was clear that that the registered proprietor held the title to the property in trust for the new trustees, subject to his right to be indemnified from the property for the judgment debt. Gendall J concluded that the Court’s jurisdiction to make a sale order derived from s 12 of the Senior Courts Act 2006, which continues the Court’s jurisdiction prior to the Act and its inherent jurisdiction. The application was one made in equity, the debt was long outstanding and a sale order was appropriate in the circumstances. These circumstances included that a sale would enable the Official Assignee to recover debt owed to the current trustee who had been made bankrupt and distribute proceeds to her creditors, and that the current trustees had refused to conduct an orderly sale.

[24]             Here, the issue is whether it is clear that registered proprietors other than    Mr Calvert hold the title to the land in trust for him.

[25]             Ms George also referred to cases in the trust law context where the Court has exercised its powers under s 52(1)(b) of the Trustee Act 1956 to make vesting orders in respect of land held in trust where a trustee is out of the jurisdiction of the Court or cannot be found.4 Those cases involved applications by current trustee(s) in circumstances where a former trustee had been replaced but refused to cooperate with the current trustee(s) to transfer a property. That is not the situation here, where the applicants are third party creditors and the position regarding other trustees is not entirely clear.

4      Hood v Burnes HC Hamilton CP53/00, 12 December 2000; and Beavan v Rea [2016] NZHC 518.

[26]             In this case, I do not consider it appropriate or necessary at this stage to exercise the Court’s inherent jurisdiction to alter the title or make an order under the Trustee Act 1956 to vest ownership of the land in Mr Calvert alone. While there is some evidence suggesting he is the sole beneficial owner, I consider the appropriate and prudent course is to order a sale and give the potential remaining owners one final opportunity to indicate whether they claim any interest in the net proceeds of sale.

Sale order appropriate

[27]Rule 17.58 of the High Court Rules provides:

17.58   Court may order sale of property affected

(1)On an application by the entitled party or by the person affected by the order, the court may do 1 or more of the following:

(a)order that any property affected be sold:

(b)give directions about the sale as the court thinks just:

(c)order that the net proceeds of the sale be paid into court, to be paid out later in accordance with the result of the proceeding or an order of the court.

(2)The court may act under subclause (1) when making an interim charging order or at any later time before judgment.

[28]             I have no doubt that a sale order is appropriate. The judgment debt has been outstanding since March 2017. Mr Calvert is believed to be outside New Zealand and his interest in the land is his only known significant asset. The land has effectively been abandoned and rates have not been paid since 2013. Further delay could compromise the value of the existing charging order.

Form of sale order

[29]Ms George handed up a proposed sale order at the conclusion of the hearing.

[30]             Ms George acknowledged that the existing charging order relates  only  to  Mr Calvert’s legal interest in the land and does not purport to cover the beneficial interest he is now said to have, which would make him the sole beneficial owner of the land. Hence, the registered interests of Ms Calvert and James Hay are not within

the scope of the existing charging order even though it is now said that those interests are held on trust for Mr Calvert. Accordingly, r 17.53(e) has no application here. That rule provides that a charging order may charge personal property, including an interest in land held under or because of any express or implied trust for the liable party.

[31]             Having not altered the title or vested ownership of the land in Mr Calvert alone at this stage, I need to address r 17.74(3)(b), which provides that, unless the court directs otherwise, all sales must be of the estate, right, title, or interest only of the liable party in the chattels or land put up for sale.

[32]             Ms George properly drew my attention to Chambers v Grindley.5 In that case, MacKenzie J held that, in the case of a writ of sale under r 599(3)(b) of the previous High Court Rules, only the judgment debtor’s joint interest in the property could be sold, not the property as a whole. In that case, the judgment debtor was a joint tenant in a family home and the other joint tenant opposed sale of her interest. That is not the case here. This case is also different from Chambers v Grindley in that the other joint tenant in that case clearly had an interest in the property, both as a joint tenant and under the Property (Relationships) Act 1976. Here, it is doubtful whether Ms Calvert has an interest at all. The evidence before me suggests not.

[33]             Rule 599(3)(b) was in  similar  terms  to  r 17.74(3)(b)  in  relevant  respects. I agree with MacKenzie J in principle that the proposition that the whole property may be sold to meet the debts of one joint owner is a startling one, contrary to the basic principles of property law. However, the words “unless the court directs otherwise” in r 17.74(3)(b) make express provision for the Court to make such an order.

[34]             In the different and unusual circumstances of this case, I consider it is appropriate to direct the sale of the land, not only Mr Calvert’s legal interest in it. The benefit of maximising the sale price far outweighs the theoretical risk that Ms Calvert may have a beneficial interest in the land and has missed an opportunity to oppose the sale. There also seems to be no question of her having any sentimental or commercial reason for wanting to keep a right to possession in the land.

5      Chambers v Grindley (2007) 26 FRNZ 739 (HC).

[35]             While I am not prepared to determine at this stage that Mr Calvert is the sole beneficial owner, the theoretical risk in relation to Ms Calvert can be sufficiently protected by allowing her to make a claim to the proceeds of the sale within the specified time.

[36]             Likewise, I will give Colston Trustees the same opportunity out of an abundance of caution.

[37]             With this modifying direction, I make a sale order, with the High Court Rules in Part 17, Subpart 6 applying, as further modified in the annexed Schedule.

Gault J

SCHEDULE

To the Sheriff at Auckland

1This Court authorises and requires you or your authorised agent to seize all the land and chattels (which include money, cheques, bills of exchange, promissory notes, bonds, and other securities for money) of John Barry Calvert (the liable party) except—

(a)necessary tools of trade to a value not exceeding $5,000; and

(b)necessary household furniture and effects to a value not exceeding

$10,000 (including the clothes belonging to the liable party (and his family)).

2If money seized is not enough, you are authorised and required to obtain more money and deal with it in accordance with rr 17.62 to 17.79 of the High Court Rules. You are authorised and required to obtain more money by—

(a)receiving and recovering—

(i)the money payable to you under any cheques, bills of exchange, and promissory notes; or

(ii)money secured by bonds or other securities for money; and

(b)selling the liable party's seized chattels; and

(c)selling the land at Whakataha Road, Waimate North, Northland, being Lot 1 on Deposited Plan 359752 containing an area of 24.0600 hectares more or less and contained on Certificate of Title Identifier 243031 (North Auckland Registry) (the land), with any sale subject to a condition that the purchaser will grant an easement to Top Energy Ltd on the terms set out in the Agreement to Grant Easement annexed and marked “A”.

3The land is to be sold by way of auction, tender, private treaty or in any other manner you see fit.

4For the purposes of selling the land, you are authorised to execute the necessary documents on behalf of all three registered proprietors.

5The proceeds of sale of the land shall be dealt with in accordance with the priority in r 17.67 varied as follows:

(a)discharging all claims that have priority over the entitled party’s claim;

(b)paying the costs and expenses of executing the sale order;

(c)paying the entitled party a sufficient sum to satisfy the amount required by the sale order, but limited as follows:

(i)in the first instance, limited to the liable party’s one third legal interest in the land, with the remaining proceeds to be held in Court for a period of two months from service of notice of the proceeds being held in Court on the liable party, Ms Calvert, Colston Trustees and Curtis Banks Group;

(ii)at the expiry of the two month period, if none of these parties served has filed an affidavit claiming an interest in the proceeds of sale, paying the entitled party the remainder of the sum sufficient to satisfy the amount required by the sale order;

(d)paying any surplus to the liable party.

Notes

1         The money seized will not be enough if it—

(a)cannot discharge any claims that by law are entitled to be paid in priority to the entitled party’s claim; and

(b)cannot pay the costs and expenses of executing this order; and

(c)cannot pay—

(i)the whole of the judgment debt sought by this order of NZ$672,297.12 plus 502 English Pounds;

(ii)interest on the judgment debt at 5 per cent, as prescribed in the Judicature (Prescribed Rate of Interest) Order 2011 and s 87 of the Judicature Act 1908, from the date of judgment (21 March 2017) until settlement of sale of the land; and

(iii)the applicants’ reasonable solicitor client costs, with the quantum of costs to be determined on settlement of sale of the land.

Date:

Deputy Registrar

AGREEMENT TO GRAf\)T EASEM FI\IT

I AIKOH E TO WIROA £T0KV TRANSMISSION LINE

20\3

Adclress: '4é Oak leigh Road

St rat ford Upon fivon, (V 377LS

E ma iT‹ john.b.cak'ertg ntlwor Id cont TOP EN ETtGY LIMI7EO {Top Energy]

#ddress: Jofin Du tier Ce ntre (tesel 2)

60 j‹e rIkerI goad, Ketikerl I›Fone: ]09} 4O7•06O4

OVFRVT6W OF PROJECT

Top E i›ergy proposes to construct a s ingle or douhle circuit Billy vol tage Ira nsmlss ion line fi'om W roa to It aitaia, to iin prove the capacity, cecurit y and reliability of the electrJcit y djs I iibutign network In jIje rai Noills region.

As pan of I we project, Top Energy pro}›oses to construct j›arf of Erie 4 ra*\sjolssIon line h•ovBh the Owner's property.

LEGAL DES'CRIPTION OF ).AND

An estate in lee simple In 24.0600 hectares more ar less beIng Lot 1 Deposited Plan 3597 '3 corija\ned in computer fteeHo]4 register 243031 {Mortfi Auckland Registry}

NfiJtiit E OP EASFY ENT

Bighls to tonvey etest ricity, telecom n un icat ions and com piner iiiedla,

INDICATIVE  PL 'N Qf  EASEMENT AREA AMD WORKS

As s]Jown on the plan atiacfied as Scfiedu]e :t.

oEscRieTtoN or WoRBs

The inst aIlat Ion of 6 elect rital ronducror above the Land and o*Je optical ground were cable {OPGW]. The etnoval of veget at ton {refer Schedule Z). As shown on tfie indie at we plan atl ached as schedule z.

$160.00	]belng job of the total) {deposit} payaI:be on satlsfactlon of tfie Owner ¢ondltlon (refer cleuce 7.T{a));
$z,280.O0	]being a funfie‹ BOX of the total) ]uncond)t)onaI Payment} peyafile on satisfaction of the Top Energy Conditions ]refer <Ieusa 7.1(6]);
$160.00	{being balance top oftlte total) {Final Payment} payable at tf+c tlrtje thal Top Energy receives from tile Owner all T Tie required do<umentatIon to enable registration of the Easement Instrumerrl (refer dause ?.:t[c)).

OR THIS AGR£EMEI'')T

DEFIM)WONS UND INT6RPßETATION

J.1     Definitions: In this 4greemen4 (lprludlng t) e ScHedules):

Agreement meens tfiis agreement, IncludIng file schedules att aclied.

Compensation means the compensetion as set out on {›age +wo of j fils Agreement, sub]ect jo ad]usT ment in accords»ce ahh clauses 4.B and 7.3.

CondltToiu means aily Kondition set out In clause 3.1.

Deposit means the inslaJment of Compensa lion referred to as IT+e Deposit on tke page ten of this Agreement ar+d payable In accordance with clause 7.J{a].

Dbturbarice means any disturbance, damage or Toss incurred or suffered byt

{a]     the Owrierj or

{c)     any occupied of tire land undert aklng, wilI+ Top t+›ergy’s k‹ owledge and fi› compliance cikF t\e terms of thls Agreement, normal harming operations on

during const rucl on of tlje Works wfilch is Jot remedied by Top Energy under clause 6.6, for exen ple but wit flout limit ation, a business loss in respect of a business locajed on the tar«t

Easement and Easement Jnstrument means an easement in gross for rtgfils to convey electricity, te)ecommunIca tlons and computer ntedia over fke Easement Area, on tfie terms set out In the form of easement Tnstrume»t attached as ScfieduJe

Easement Ara» means the easement areo shown on I fie PIa+ , subject )o ad}ustit+enj

Mergency Situation means a situation In wfiich there Is a probable danger to Gfe or propert y or Tn n e4)ate risk to the continuity or safety of suppJy or 4Istr)fiut Ton of elect r)city.

Entry Notico njeons any notlre given by Top Energy pursuant to clause 6.j.

+nacI4Inery and all materlaIs and iten s required for II+e Purpose of exerclsJng any of tFe rigfits under thls Agreement.

rlnal P•yment means the lnstalmenr of conJpensatlon referred to as tfie rlrial Peyment on page two of tfi¡s Agreement and payable In accotóatc w!th clause

Land means I fie land desri ihed on the front page of I his Agreen\e nt.

Ov•ner rHeans Ihe Owner, i he Owners successors a url/or the legible red proprietor{s) tot the title belog of ilie land.

Owner Ceriditlon means I we cond¡tion set out In clause 3.:t(e).

PIan means tfie tndkative plan atlashed as Sofiedule 7 {CAD Filei SECAP Plans — Celyert, John— ID E4-7 DecoiJlber 2Oz2 - Version 2).

Prejlrtjinary Works means the wurM described In clause  z,j, or any part of sucfj

Project means tile )nsta)Iat)on of a single or double circuit electricity transmission line witfi a nominal operating voltage of up to 110k\/ and other electrical and communitelTons works together with all associated works installed o+ constnJcted

Top Energy means top Energy L¡mited, Its successors and permitted trai\sferees. assigns, lessees, sublessees and licensees toget leer with Top Energy’s servants, agents, employees, wOrkers, in'vItees, licensees and contrertors.

Unconditional Payment means tlje instaJment of Compensation referred to as tfie Untondlt onal Payment on page two of I fits Agreement and payable In accordance

Vefilcles mea 4s four wheel drives, motorblkes, cars and rrucks, tractors, frallers, graders, pile drivers, drilling rugs, cranes, helicopters, aircraft, exceve4 ion and eartfimovNg equJpn›eet aed any other macfilnels) andYor apparatus requJred for Jfie pu+pose ot exercising the rTgtjts granted by tlJis Agreement, whether wheeJed or tracked.

Working Day means any day of tfie week o\her II+an.

(e}     Saturday, Sui\day, WaI1angI Oay, Good Friday, Easter Monday, Arizac Day, II+e Sovereigns Oirthday, Northland Anniversary Day and Labour Day; and

Ib)     A day i I he period commencing on 4he 74"‘ day of December In any year and ending on tile S" ‹Jay of January in I he foIIow)ng year, botfi days

Wott‹s means t)je works described on the front page of this Agreement (subject to change ii1 accordence wltfi clause 4,2}  and in tile  Easenjent  Instrument.  for  the pu tpose of const tuning the Project, but does not include t fie Pre))mlnaty Works.

1.z     Interpretation: In the Interpret ation of tIds Agreement unless the context otherwise

{a)     the I\eadIngs and subheedTngs appear as a matter of convenience ar+d shall not affect the interpreter Ion o( II\Is Agreement;

]h} referen ces to sections, classes and  schedules  are  references  to sectioils, clati£e s and schedules Tn tfiis Agreement;

(c) references to any statute, reguIatk'n or other statutory instrument or bytrw shall be deemed to be references to tI e statute, regulation, Instrument or bylaw as from time to tkne amended and Includes substitution provisions that substantially correspond to tljose referred to;

/d) tfie sTngulor Tr+eludes the gJural aod ence versa and words Tncorqoraflng any gender shall Include every gender; and

{e) where ar›y petty comprises rn ore than one person, each person shah be deemed to have entered into thls Agreement ]o1nily and severally a nd the provision of this Agreement shall fled such persons jointly a nd each of them severally.

PRELIMINARY WOgKS

2.:t

Preliminary Works: In ronsiderat)on of Top Energy’s obligation to pay 7 he Deposit, the Owner agrees to allow Top Energy to enter end re-enter the land ct all reasonable I imes from the date of I his /\greement, wiih or without sucfi assistance, machinery, vehIc)es and equTpmenl as Is reasonafly necessary' for tfir purposes of inspecilng the land and carrying out preliminary testing and invertlgatTon of tFe

ConsuIzatTon' Prior to undertaking like PreTlmlnary Works, Top Energy shall use reasonable endeavours to ronsu)t wltfi the Owner regarding I+ie t1mIng and conduct of the Preliminary Works.

2J reinstatement: Following complex ion of Ilie  PrclTrrilnary  Works,  Top Energy shall relnsf ate the Land as nearly as Is reasonably ptact Icable to the condition existing immediate ly ptlor to en try by Top £nergy.

3.1    This Agreement is subject to tfie following ConditTons‹

Owner Condition

Date for satisfaction

(a) Tfie Owner obtaining and providing I o Top Clergy cor+sents Iron any mortgagee, clJargeholder, e*Jcumbran¢ec or grantee having an interest In tfie fand, to tile rights granted under jhis Agreement and a covenant In the form ret out Tn Schedule 4.

Jfie Owner shah do al) tl4ings reasonably necessari to obtaln such convents, and shah provTde ropíes of the consentr to Top Energy.

:I mod th foIIoc'Mg t fie date of hits Agreement

{bJ    Top Cnergy obt aImpg all resource and oJJJer

conscuts and app osals, and all property and other rlgfiu, wfiiclj it considers +tecessary or des itable fnr tfie Project.

The Owner:

written approvals nr consents requesied fry yep f netgy; and

{i() shall not  otajec\  to,  advocate  against, oppose or impede any action take n by Top Energy, nor pto<ure or assist any o tT\er

in order to obl am any such consent s, 4pprova is a»d rights and undertake the Project.

This Condij ion Is inserted for the henertT of Top

(cJ Top Energy resolving to proceed w'ilfi the Project wit] a route a IJgnnient wT iclj passes over part of the Land. Thus Condition is inserted for tfie henefij

GB moijtfis following the date of \fi4s Agreement.

18 months following the date of II\B Agree menf.

*.3

4.›

Satisfiaction or waiver of Top Energy Conditions: Top Energy may declare tfie top Energy Condil ions satisfied or waived eIt her by notice In w rlllng to the Owner or the Owner’s soljcitor, or 6y glvln to the Owner an Entry Not i¢e.

Nofi.satlslacjIon of any 6ond]tIon: If any Condilion Is not satisfied or waived by the date fur satisfac4 ion, elf dler pany may thereafter unIi) the CoodTl io+1 IS satisfied of waived, cancel tIjis Agreement t›y girlng notice to the otfier, Ip which ease any Deposit paid shaII be rei alned try I fie Owner, and log Energy rhc\7 have r'o obl\gal\oa to make any ojI+er payments of Co opensation.

CHARGES TO SLA I, WORkS AN0 CASE MENT II''ISJ 8UMENT

Ofianges: Tlje Owner acknowledges trial changes are possible to the Probec4, the Plan and tfie Works, In particular dvrlng tfie process o( satlsfylng II+e Top Energy CondilToi s.

Permitted Changes: To/› Energy may at any time prior to finally ation of 4 Ije plan and   Easement Instrument make sucfi cfiat\ges 4 o tfie Easement Area, the design of the

Works, and jlie Easextent Instrument, as It Rons Iders in Its sole discretion to be necescary or desirable for the Project, provident tl›aI:

{a]I fie cHanges do not extend boy Cnerg/ s ‹ights beyo\ad those contemplated by ITIIs Agreement; and

-7

(b) the location of a conductor suppon structure/pole must be within a 25m radius of the location shown on the Plan unless ground conditions (for example, soil Instability or the presence of archaeological sites) render it infeasible to locate a conductor support structure within this radius; and

«notwlthstandtn8 any relocatton af the Easement Area required to accommodate a change of location of the œnductor support structure/pole

from that shown on the Plan, the wldth of the Easement ATea will be no

greater than the width ofthe Easement Area sfiown on the Plan,

4.3  consukatlon:  Top  Energy  shall  use  reasonable  endeavours   to  consult  with  the Owner lfi respect of any proposed changes under clause 4.2 so as to minimise any adverse effect on the Land or on the Owner’s use and occupation of the Land, and If the Compensation should be Increased on account of any such changes, shall adjust the Compensation acCofdlngly.

5.1     Grant of r1ghts: Followlug satisfaction or waiver of allCondîtions:

(a)the Owner grants, and Top Energy accepts, the Easement over the Easement Area on the terms set out In the form of the Easement Instrument  attached as Schedule 3 subject to any variations provided in this Agreement;

{b)

Top Energ/ and the Owner shall be baund by the Easemeht  Instrument  as if It had Deen executed by both parties and registered against the title to the Land, fts terms being Implied Into this Agreement; and

(c)the Owner  agrees  to allow Top Energy to enter, re-enter  and remafn on the Land at all reasonable times, with or without such persons, plant, machinery, Vehicles and Equipment as Is reasonably necessary to perform  the  Works and to exercise the rlghu or otherwise Undertake any action provided for or contemplated in this Agreement and in the Easement.

5.Z Top Energy  not obliged  to  enter:  The Owner  acknowledges  that  the  grant  under dause 5.1 does not oblige Top Energy to enter onto the  Land  or undertake  any Of the Works or otherwise eyerclse all or any of M rights under the Easement.

ENTRY ONTO LAND

6,1

Entry Notice: where Top Energy Intends to enter upon  the  Land In the exercke  of any one or more of the rTghts set out in clause S.1 it will give to the Owner at feast  10 Working Days’ notice before such entry of its Intention to do so, with the Entry

(a)the location of the piopnsed entry;

(b)the area on which the WorM will be undertaken by Top Energy;

(c)the nature ofthe Works to be undertaken;

(d)the date and time of initial entry;

(I}     I he nature of aTT otfier wott‹s tfict are to be undertaken oj+ file Land In accordance with the rights granted pursuant to clause S.1.

6.2O+vner may set condltlons' Upon receipt of the rntry not Ice the Owner may set reason a Me condW iotis relating to the fJming of entry and the access route but those condTtTons may not:

{a}    delay entry by Top Energy by more than Ts Working oays; or

{b)    require money ary or other Rons ide la tion; or

(c)     otherwise defeat rfie ability of top fl nergy to exercise effect IyeIy If+e rigl+Is granted under ctajJse S.T.

6.3Dlsgutes: Any dispute between tfie Owner and Top Energy ii1 relation to the terms of tlae Entry ttot]ce or the condtt)ons set by the Ou/ner pursu a»t to clause G.7 shall constitute a dispute wfilcfi is to be resolved using tfie dispute resolution procedure set out In clause :t9.

Specific oblTgafions' Top Energy and the Owner agree to fi'e bound by any obligations set out In Schedule 2 wH)ch are specific to the Land.

Mlnlmlse Interferenc e‹ When exercising Its rtghts under thus Mgreen›enI, Top E nervy will use its tea soi\a ble efforts to ‹ause es little Interference as qincticab[e to II+e

the Le ed, but witljouj In any may limiting tfie rigfijs of tlje Owner to a claim for Disturbance.

Rc]nsta te ment: NJ pon co npJe IIon of I Fe Works. Top Energy shall a I ids cx pensc ]n a]T If+Ings make good ai\d rein sta te the land to ensure tfiat the hand Ts left Tn as nearly as possible It\e saws coodTtbn es \‹ wee prat to the exercise of Top Energy's Sgt Is under this Agreement w]flch may innode, for exemp)e but without iimit•tén:

(a}     relnsletlog oz repaIrT«g any fe«es or otMr Tinpr@emcn\s which haYe Seen removed or damageai

(b ] removing any brldges, culvert s, roads and tracks coristrvted or› the I and, or alternatively leaving them where rI e Owner so requires or wfiere Toy› Energy requires them to remain lot continued access jo t fie I asenJent Area jn wHIcIj cese they sf+aJT become gart of the Land and owned by the Osmu; and

lc)     where the Land was  previously  in  pasture,  spreads topm0, appiylwg   fenHJser a‹id/or ltme and re-esta blislilrg grating pasture (prevlded tfiaj the

Owne r sha11 facilitate 1 ljJs precess by not o•er•stocking  or pver-grading).

6.7Top Enetgy’s employees, agents, etc: TeP EnerBY may use Its nominated

emplo@es, agents, consultants or contractors to perform the Works.  

6.8Oosts: Top mercy will meet the rul I ‹outs of the Works under4 a£en by Tofi £nergy.

6. T 0

Entry or+ non-working Days: For I tie avoidance of doubt, Top Energy may enter onto the Land ond u Jdeneke any Works on any dey of the year including days whirh are not Working Days, subject to tfie provisions of the Entry Notice given by Top Energy under clause G, T.

emergency 6ltuetTons: In the event of an emergency SItuetIo•J Top Cnergy can exercbe a right of entry to 4he Land y/Itfiout giving 4n Entry Notice save that Top Energy win) glve tfie informatToti requI+ed by an Entry Notice for such emerged+cy wo›t‹ as soon as pracjJcab)e thereafter.

Tlmlng of payments: Afle conapensat)on b payehle by Top Er+orgy to the Owner as

(a)The Deposit to be pald following satbfaction of the Owner Condklon, which payment is not- tefund»bfe in tt›e event tI at this Agreement Is ancelk d fot non<atisfactfon of any Top Enetgy Condition; end

fb)   The Uncond]tlonal Peyment to be paTd fo)TowIrig satlsfgctlon of gje Top

țc)TFe r)nal Payment to be paJd aț the jline tbat don Energy receNes (+onJ afle Owner the dorumentatTon referred to Tn cleuse 9.a, sub]ect to ad]ust ment as set ouț jn cleuses 4.3 and 7.8, together with comgensatlon for any DTsturbance Incurred or suffered durlng const ruMlon of the Works.

7.2 InvaI@si TI+e paymer+ts to be mada by  Top Energy  pursuant  to etause  7.E  are subject to Top Energy tecelvTng appropriately prepared §woIces, Including GSf number and details wrere the Owner 1s roglstered for GSM purposes.

,.a

Changes In Easement Areai  In 4lie event, tFat following final survey of the E asement Area. the Easement pea Is found to be greater or lesser tf+an t fie awa specified on the Plsn by a ma‹gk+ exceeding SP, tf+en t\\e ¢or+ipensatian shatl lie sted proponTonately.

Full and flnal settlement: The Conjpensat in, any compensat]on for Disturbance, end jhe otI+er payments set out Tn this Agreem+ent and llje Easement Instrument. shall 6e in full and fina) settlement of oil claims by the Owner ar)s§1g whether i›J relation to the granr of I lie Easement, Tn)urious effecllon, loss of pi'ofit or otherwise

Erie Owner acknowledges thaI Top Enetgy may operate the Egulpnjent at any voltage up to and inc{udIng 710 kV alJowTng for standard operating (Iuctuation+ In supp)y voTtages.

8U8VEY OF GAsEMrNT AgEA AND APGISTRAT]ON OF EASEMEN7

Survey: TI+e parties ecknowTedge tfiat the Easement Area b s++b]ect to survey. Once Top Enetgy has finaTlsed the Easement Area tnd Easemen I Instrument, top Energy,

at its cost, sfiall use reasonable endeevo iJrs to have the suryey of IIje Eagement Area completed and I he survey plan deposIted.

9.2Consentsi Top Energy sfiall attend to all necessary pTannTng, resource consenting, IeBa) and otJJer matters, at Its own cost, to eT\able the s flrvey plan to he deposited and ffie Easement +egislered.

9.3Owner to assist: Tfie Owner st\at] co•operate fully. an6 promptly sign sun› doc+iments provided to tM Owner by Top Energy w)tfiin z0 Working Days of receipt end do sych acts, matters and Ifiings as sFaIT be Inquired of the Owner to enabJe deposit of tfie survey plan defining th Easement Area and registjarlon of lfie Easement Instrument at LINZ, including obtainng all Mortgagee and other consent s referred to Jn clause 3.1{a}.

j0

10. t

legal: Top Energy sljell reimburse all I Fe Owner’s  reasonable  IegaJ  costs  In con nection wlt fi tfje perusal, advice and execution of thh Agree+tie nt and registration of I Fe Easement Instrument including aI) costs and expenses Incurred In oblalnTng all required approve]s and/or consents to thls Agreement and tfie Easement Instrument under rlause 8.E(al.

j0.2 velu#tion: Top Energy shall reimburse ltte Owner for tfie cost of obtaining an Independent valuatioW assessmen I of the Compensation offered by Top Energy 4o tfie OYyner for the purposes of thk Agreement.

II.   3

)J,2

£evaat registration: Pending registration of the Easement Instrument, to ensure twat the provTsfons of this clause and jFe existence of tkis Agreement are drewn jo Ihe attention of any proposed transferee or assignee of I lie Owner's interest In 4l+e Lend or I fiis Agreement, Top Energy wlll at Its expense regIs\er a caveat against tfie certificate of jitIe to the Mnd to protect its Interest under this Agreement,

Consent to dealings' Provided that IT s Interests under time Agreement remaln protecTed, 7op Energy sTiall froi» jinde to time wfien req« fred by file Owner to give its consent as caveator, sign sucH document, and do sucfi acte, mat1ers and tfiings as shaft be neœs sory lo enable tire Other to regisler and dealtng againsj the cerf Itlcate of title to I fie Land an J shaft bear all legal end other ¢orts reasor+abIy incvrred ïn furnlsh)ng sucfi consent includlng Chose of tt+e Owrxzr.

Sanding notices: All *\otTces or other conJmunlcatlom to 6e given under I file Agreement shall be Tn wetting and shall be se»t by any of tfie foIbwI+Tg means:

{a}8y deTTvering it qenonelly or sending It by prepaid Posi to 4 fie pany to the address notified In writing by eljleer party to tHe of Ref;

{7:i)   By Lending il to the fax number the party was specitied;

(c} 0y Lending il tp the email address that the party Ijas spectfied,

t2.2      delivery:  t4 olices s[+aIl be deemed to be given as follows:

(a)     A nojIce sent by pre-paid post shall be de emed to be given two Working Days after {h +l exclus we of) tI+e date of mailing.

(b] A notice delivered by hand is deemed to have been received at the tln e of delivery.

e notice sent by enJe)I or facslmTle Is deemed to flare been received at the lime of rransm)ss)on provided that a confJrmat Ion of transmission is received by jhe sender or, Tn the case of an e•ratI, It+e receiving part y acknowledges receipt of the email,

]d)

Notices served after Spm on a Working Oay, or on a day wfilch Is ilot a working Day, shall be deemed to haye been served on tI e next succeeding Working Oay.

z2.3 Contacts: The InIt)a) not Tiled addresses and contact references of tfie parties are as sej out on the front page of this Agreement.

12.4 changing tor•tects! Any party may change its notified addresses and contact numbers by notice In wrJllng to tfie otfier party.

DISPUTE RESOLUTION

33.z Informal resolutions If any dispute arses between tfie Owner and Top Energy concerning the r¡ghts er+d obligations contained within this Agreement, the pan+es will enter Into negoIiaIIor+s in good fafth to resolve tfie dispute themseNes or jHrough any Informal dispute process they agree upon,

13,2

Mediatlon' jf the dispute Is not resolved within 50 Working Days then any pany may at any time serve a mediation notice on tfio otfier party requiring tfie dispute be referred to mediation. Idle mediation notice shall set out the nature of the dispute. The panles sfieTl in good faljIj endeavour to agree upon a medla for with]n s Working Days of tfie dale of service of jFe mediation notice. JI tfie part fee c»nnor agree on the mediator, tfie President for the lime being of he New zealx nd fayz Society {or any successor organisation) or the President's nominee will appoint an independent mediator. The mediator’s costs are to be borne equally by jhe panles.

z3.3 Arblvet)on: if ltte dispute Js not resolved wllfiln 20 Working Days of the dale on wl defy tile n edlatlon r+otIce Is served, the panIes wit) submit jo tbe a tbITraIIon of ali Independent arbltretor appoInte‹4 )o)n4 Iy by I I+e parties. If the panles cannot agree on tlje arbitrator within a further TO Working Days Il›e PtesTdent for jfie llme belng of tfie New Zealand law Society {or any successor organisation] or the PresIde H‘s nominee will eppolol an independent arbitrator.

Loyy; Any arbtt ration proceedT»gs wT)I be conducted In accordance with the Arbitration Act 3996 and the substant Ave law of New Zealand.

t4     

Top Energy:   Top Energy may assign,  sub-license, novate or otherwise  transfer Ifie

\ytioIe, but not any part of, fts Interest in tfils Agreement to any pa+ty, provided tfiat

- 12 -

the (ransTeree or assgnrr party et+Ten into a deed of roreriaM c'Ttfi Eric Owner, prepared by 7oq Energy’s solicitors at Top Enetgy’s cost, to comply with the provts)ons of HJTs /''greement Ïn place of Top Energy.

14.2  Owner' Eye Owner shall noj transfer or assign any of its interest In If+e Land or this

Agreement or grant any Interest, mortgage or charge over the land unless first   obtaining from lfie assignee, transferee or recipient of the Interest In the Land a

deed of covenant y/ith Top Enetgy twat It clit comply witTi the provisions of this Agreement instead of the Owner or, in the case of the grant of an h terert In the hand, )n addition to the Owner, with the deed o( covenant to be generally Jn the form annexed hereto ag Schedule 4.

zs.t

Non-merger: Exrept to the extent that the provisions oontained in this Agrcement ere reproduced in, or substentlally provided for Tn, trie Easement fr+sirunJenl. trie provisions of tkls Agreemem shaft not metge in or be eat)ngtiIshed by IM tegjstraj ion of the Easemem Instrument, but sfiall remein in ÏuII forœ and effect and operetiye ar+d enforceable accordé+g to their jenor wfjile tHe Owner remalns t fie regfstered propriotor of fée land.

Further ass+jrancesi file parties shell always act In good faith a»d do all ects and things and execute all documents reasonably necessary to give full and proper effect to this Agreement, Eare+nent Instrument and the right s and Interests granted fiereTn and those subsequent documents, and eacfi shall enter Into such further documents and regts\rable Instruments (Including co-operating to permli sucfi Instruments to be registered and obtalnlrg any mortgages or ct+argefio)der’s consent) necessary to more fully glve effect to If+e same ond to preserve the lntegrlty o] the long term arrangements Agreed upon,

15.3SeverzbTllty: jf any part of this Agreement )s held by any court or admlnTM ratTve kody of competent )urtsd]ct]on to be Illegal, voJd or unenforceable, such detetrtilnotton shaft not knpalr the enforceafitMty of TGe remaTclng parts oT Ills Agreement.

No weiver: no waNer of any of \ fie pro'flsIons of thJs Agreement, nor any consent to any departure from tfils é'greement, wlll be effective unless glYen In writing, and fhen it wTIJ he effective only ]n the sqe<lflc Instance and for the spec¡fIc purpose for wfilch it Ts glven. No failure, aelay or fiJduJgence by eTtlter party In exercbing any power or right under thb Agreement will operate as a watver of such power or ttght and a single exercise or partia] exercise o( any sucfi power or right will not preclude furtfior exerclses of that power or itgfit, of ihe exercise of any other power or rigtjt under tfiis Agreement.

IS.5

Entire Agreement: ThTs Agreement contains all terms of the Agreement between the qartTes and supersedes afT prior communications, reqresrritatJo+\\ ggreemenj s or undentandIng between the parties whh respect to tile subject matter of this Agreemenl.

.z

‘

tf+nV Asr+4oMsr eg‹e+

i3

£XECUTIOf'I

ssu,o «„o«aeARxxcAtv*n1

Witness

Sjgnatt re'                "                .                 ‘".

name (In full)-  “”””

Adclress:

sjGnED for and on behalf of TQP ENERGY LIMITED

by:

f4

tness

s gna ure:   ”‘ same in full); ”

Occupation:  "

Address.

lsite speclflc condiuons appll cable to jhe Land)

Top Energy may remove and treat (species dependant} t roes or other vegetello \ on the Easement Area and following a Top Energy risk assessment ojay aIso remove and treat

]specjes dependent) gy jfittj Ttees or other vegetation on tI+e Land outside I fie Easement Area twat pose a res k to the transmission line. All tree meterlal will ba cut Into manageable lengths and the vegetation n ulcl+ed and left on tfie land. Top E•\ergy shal) not be obliged to reinstate the vegetation foJlowlng completion of tfie Works, Erie Owner m oy plant pasiute on the area wfiere vegetation has heeij removed.

J/\M£S HAY PEN SION TITUSTEtS LIMTTEO ]tI›e Company) warran ts and undenakes to Top E t›ergy trial.

Ia[   The Complny Is validly Incorporated Tn t we United Kiflgdoiri and fias full legal capacity to enter Into this Agreement;

\b} Tf+e Compaq Teas full powct and a»thor)ty \o execute It+)s Agreement; aljd

]c) If+e metFod used for execution of this Agreement Is binding on the Company.

{laserpent inst ru ment)

Land ftegistration 0ist‹icr

)4ortfi Auckland

Grantee

Grant of I asemeril

8cGefiute fi  Continue in addil taunt Annexure Sct'edule, I]

Purpose     (Natore     and ezi cut) or	Shewn          (plan reference)	Ser•)enl Tenement {Computer  Register)	0 omlnanl Tenement
Refit to Convey electricity, telecommunlceiions and computer media	harked “ " on Oeposlted Plan	243051     {north	1 n gross

Anpe#ure Schedule 7  Page of

Easmiena or pro/is 8 prendm rights and powers {Induding tetms, <ovenents and

<ondATons)

Oeleta phioces Iy [ ] ond h'iseri memorandum number os required,' contlnue in oddirfonof

Accenture Schedule, If requked

0eJe/e q/+roses in   ond insert Mrmorondum number or require; continue in additions]

Annexure Sri edJJ/e, J/ required

r0Riv› 0r #EGISîP4etc MEMORAI DUM SECTION t55A, LAND YAANSFEA ACT :t9S2

Class of instrument Tn yzl Vert provMons In4ended to be lncluded

• 

practically possible to enhance tfie land tise opelotions or+ tfie land by the Grailtorj

(b) if during the course of the constrjjctlotj of TI+e Works on tlje Land jhe Grantee uses any existing roads and/or access twcFs on tfie fans then tfiese will be repaired and/or maintained as is necessary by the Granlee so that aT the toncly sion of tfie construruon of the Works sucfi roads aJjd/or access tracks are left jn as nearJy ns pcsslhle II\e same condition as they were In at jfie lime of first entry onto the hand by the Grantee;

if the Grantee }n tGe exerrJse of arress jo tfie feud for the purposes of iilspection, use, tepalr, maintenance, renewa], alteration, replacement, upgreding, addition to or moa)lication of the Y7ona uses roads and/or access track:s on H+e tand JI sfiaJ) at tbe conc)usfon of such period of acress repair and/or maintain fhose rosds and/or access tracks to ensure thai the same are left in as nearly as possible the sante condition as they were in at th+e time of tfie commencement of the exe+rise of the Grantee’s rights hereunder.

to Construct gates wftfiin fences (Inc)udIng boundary fenres) located on the Lar+d and to inspect. use, repair, maintain, renew, alter. remo've dna modlfy ttose gates at the cost of the Grantee to Erie extent tfiat j+ reasor+ably necessar'y for jfee Grantee to exercise Its rtghts under this easement )nstrumenL

1.z.7 io dear and keep tf+e Easerr+ent Area clear of trees, sfirubs, vegetation, srr++cture+ [)nc)udJns fences\ eanfi, gravel and stone, and to clear and keep such other pan of tfie Land as 1s reason*bly necessary In flue circumstances clear of any trees. s firubs. vegetation, s\ruptures (Including fences). sob. eartfi, gravel and +tonz wfiicfi is or Ts )Ike)y to 6e or become, In tile rea4oneble oplnlon of the Grentee, a danger or Fazard ro the safety or operation of tfie Works, wITI Impede I he Grantee's access to the Works or will of fierwTse inte+Yete with fi'ie Grandee's rtgfifs u++der trim EasemeeT Instrument;

to open up the soft of tf+e Easement Area end erce•ate or remove timber, vegetation, soil, eenfi, gravel and stone from Ihe Easement Aiea to tire extent necessary for the Grantee to exercise ltd lights under lh¡s Easement Instrume n\; and

to temporarily occupy any pan of tTie Land twat Is reasonably necessary In the clr¢umstances In or4er for the Grant ee to exercise any of its rlgfits under this Eascn\e of Instrument Including two rigs t to Construct tbe Works aijd in doing so tfie Grantee jnay fence off sucfi part or parts of tf+e pccvpiea area as is reasonably necessary for a 7cmpotary Per]pd or Ternporary Periods for health and safety purposes (subject to clause 2.1 of the:: Easement Instrument),

S.2     In uiJdenaklng any one or more of the rights aid powers **'*f'Y BE "ted tfie

 

2J -

I

- 22

’ •’

'

'

TT\e Grantee, in entering 4I\e fen4, will lake an reasonable rteps to njinlitilse Inconvenience to die grantor, Including Tfiut without l)ntJtstToc};

S.S.j     jI\e tin e of entry {unless I fits Ts not poseIble due to an Emergency

'

S.5.2    Leaving gates as they are found,

s.s.3     Driving 4n a safe manner and taking reasons Ne steps not to dIsturb stay

,

and

,‹

5.5.q    Avoiding access through eny speclflc areas y ithin t fie land wklcT› have

,’

been Identified by tfie Grantor to I fie Grantee unless necessaty to access

but witl+out TlnJfTTng the lights of the Grantor to claim under clause 2.2 of tfiis

Where entry Is effect ed by the Grandee due to an Emergency Sltualion the Grantee

sf+all as soon tI+ereafter as Is reasonable glue an Entry Notice to the Grantor sucfi

Entry Notlce (o 0e M terms of clause 5.Z aT tfiis fi›+1run+set.

Br=acfi of respect]ye obtlgationz

6.I

If I fie Grantor wllfuTly or wTtfi y•lIfuI dlsregard causes or pennTts any bleach of the

obligations set out In this Easement lnslrumem. the Grantee shall be enfltled to

Marie elf reasonable steps to re+nedy the b+eacfi, with the dTrecj cosh of remedying

I he breach recoverable by tfie Grantee from the Grantor as a debt. Wfiere the

Grant ee considers k reasonable In the clrcumslances. prior to remedyir+g the

brearG, Me Grantee will give notIce of tfie breach to II+e Grantor and show tfie

Granj or a reasonable perk›d to remedy tfie breach .

6.2

]I the Grantee wilfully or vYTth wI)fuI disregard causes or pemjlts any breach of tfie

obligations set out In this Easement Instrument, the Grantor sfiall be entitled to

I ake all reasor+able steps to remedy rlio hreacfi, with It+e direct rosts of renJedylr+g

the breach teroverab)e by the Gtantor from the Grant ee 4s a ‹4eGl, projzided IF at In

no cIrc+imstances shalf the grantor Interfere wltfi It+e Works In any way

whatsoever, WI\ere the Grant or considers It reesonable in II e circumstances, prior

to remedying  fl e breacfi, the Grantor wit) gTw notl¢e of the breacfi to 4he Grantee

and allow lie Grantee a reasonable period to r eiredy tfie breach.

Health end safety

7.1

The Grantee will comply with all ob)ïgatIons impose‹4 on trie Grannee at lave as trie person In charge of a p]ace o+ worf and wJIl de responsible for t fie healtlj end

safety of any person trio colere on the tacd at Cf+e zeguesl of trie Grantee.

1.2

In desigijlng a»d ConstnJcllng a»y Works, I ha Grantee will taTie aJl practicable Steps

to mitgcte any I+shards associe)ed w)tfi the Works U4at may harm persons on tfie

3hc Grantor wlII comply witfi all obllge\ioljs imposed on Erie Grantor et law as

 

12.2 If tfie dispute b not resolved within t0”Working Da ys t) en any gany may at any 1)nie serve a mediallol› notice on the otheI pany requiring the dispute be referred to mediation. The medlntlon notlce sfia)I set Out the nature of the dispute. ltte parties shall in good faith endeavour to agree upon a mediator wTtfiln 5 Working Oays of t!ne date of service of the mediation notice. ]( like panies canngt agree on II\e mediator, the Fresldenj for the time belng of the t'Iew Zealand Law Society {or any successor oiganlsatlon) or the President's nominee wit] appoint an indcpendejjt medTotor, TI+e medtatoLs coTjs are to be borne equally §y the pertlrs.

If the dkpute Is not evolved within 20 Working Days of the date on y/hIch the metTiation notice is served. the parties n'JTT subn›ij to jhe orbljralTon of an Independent erbTtrator appoMted ]oIntIy by tf'e parties, If lfje panted cannot agree on the arbitrator within e further TO \NorkTng Days the President for the time being of the New Zealand law Socfe\y (or any suocenor organfsatfon} or the PrerTdent’r no+nInee well appoint ei1 )fidependent arbhrator.

j 2.4 Any arbitration proceedlngs wJTf be conducted In accordance wfTfi the Arbftratfori Act :t9S6 and the substantive law of Neyz Zealand.

bent rability

13.I

of competent jurisdiction to be jIIe8aI, void or unenforceable, sucfi determination shall not fmpelr the enTorceabillty of the remaIning pens of this Easement

This Eosement Inst ru tient sljall be construed Tn accordance wïlfi Net Zea]and law.

A waiver of eny pro•4sIo n of this Eacement Irts trument shall not be effective unless given Tn wrTttnz mad then It shell fie effective only to the extent It+a\ It Is expressly stated to be given.

A failure, dehy or Jndu)grnce by any gnMy )n exercb ing ony power o+ right swal] not operate as a waiver of that power or right. A single exercise or partial exercise of any power or right shsll not preclude further exercises of I hat power or right or tI\e exercise of any oTfier power or rtglTt.

In this Easement Instrument unless I I\e content requires otI+erwIse:

)s.z.z ”Construe“ ineanr to ba[td, conrlrucT, erect, Install or fry IM W 'rj . access trarks, roads. gates and/or fefices ‹ontempIatcd by tfilr Easement InslrumenI and Includes anything that is reesonab4y necessary to gfye fuIJ effect to thIs Easement Instrument iitc4ui:Ting re+tiovi g son and water from the Easement Aree subject alweys to the provisions of dause 2.7 of tlj]s Easement Instrument;

 

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SCHEDULE 4

(keep of Covenant uporj f rankle r ør ass)g nme nT or gran I of an III DIII I+4 I fie La ńd)

]"the Purchaser/ Mortgagee")  

TOP ENERGY LIMITED

By an agreement to grant an easement and authorize the use of land for constructJoo o( electricity wotks deted ,..................................................... 20.., a copy gf wlik:Ji is ay feet+ed fierero (“Hue

Ag eement”), the Owner agreed to grant to Top Energy an easement In gross over the property described in I I+e Agreement and legally described as Computer ITegIsjer(s) UA.            {“tfie fi+nd") and I o allow Top Energy to construct electriaty works on tlje

land.

The Owner has egreed to sell the land to the eur‹Faser/grab\I a mortgage over the hand In favout of the Mo+tgagee.

c.     Putsuat+t to the Agreetrient, lfie Owner Is required to provide Top Energy aft fi a deed of ros*enanr Iron the Purchaser/Mongagee.

DEED 7 we panTes agree as follows: eurcT+as ePs covenant with Top Energy

(a)    at all twJ es be bocnd fly ar+‹4 ›eifi ot›sezve and perform tfiose covenants, terms and conditions expressed or ]mpITed in the Agreement wT\icl\ are to be observed ond perTorn4ed 6y tfie Ow‹te r under the Ag*woenl;

{b)   fulfil the Owner's oblgallot+s under the Agreement; and

(c) register a raveat In favovr of Top Energy st IT+e time II takes title to t\e land to record 7op £cergy’s merest In the land pursuant tg H+e Agreement, such c4yeat to be prepered end provided by Top Energy.

Mortgagee’s covenant with Top Energy

z,4wind effect fron\ ltte     day of            Top Energy that the k)ortgagee'