Joe & Co Builders Limited v Thompson - [2023] NZHC 224

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-605

[2023] NZHC 224

UNDER the Land Transfer Act 2017

IN THE MATTER

of an application pursuant to s 143

BETWEEN

JOE & CO BUILDERS LIMITED

Applicant

AND

CHARLES RONALD THOMPSON and SANDRA MICHELLE LESLEY

THOMPSON

Respondents

Hearing: 3 February 2023

Appearances:

J D Dallas for Applicant

M J Borcoski and C W Martin for Respondents

Judgment:

17 February 2023

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction and background

[1] This is an application by Joe & Co Builders Ltd for an order sustaining a caveat lodged by the company over a property owned by Mr Charles and Mrs Sandra Thompson in Lower Hutt.

[2] On 7 March 2022 the parties entered into an agreement for the sale and purchase of the property. The details of the contractual arrangement between the parties are not important. However, I record that the property was bare land of approximately 8,337 sq m; the purchase price was $175,000; and the (original) settlement date was 8 July 2022.

JOE & CO BUILDERS LIMITED v THOMPSON [2023] NZHC 224 [17 February 2023]

[3] The agreement for sale and purchase was based on the Real Estate Institute of New Zealand standard form document (11th ed, 8 February 2022) which provided in cl 6.1 as follows:

The vendor shall not be bound to point out the boundaries of the property except that on the sale of a vacant residential lot which is not limited as to parcels the vendor shall ensure that all boundaries markers required by the Cadastral Survey Act 2002 and any related rules and regulations to identify the boundaries of the property are present in their correct positions at the settlement date.

[4] After the parties had entered into the agreement for sale and purchase, the applicant, through its director, Ms Catherine Foot, became concerned about whether the boundaries of the property were correctly and completely marked with survey pegs.

[5] Ms Foot herself carried out some investigatory work. In her evidence, she describes what steps she took. This confirmed her in the view that the boundaries of the property were not correctly and completely marked.

[6] Correspondence between the parties and their solicitors followed in which the scope of cl 6.1 and the extent of a vendor’s obligations under that provision were canvassed. The important point is that, the issue having been raised, the respondents, presumably on the advice of their solicitors, engaged a firm of surveyors, Real Time Survey, to survey the property and if necessary regularise the position. The principal of Real Time Survey who was responsible for the job was a Mr Kieran McCarthy.

[7] Mr McCarthy surveyed the property on 19 July 2022 and provided the respondents with a report — in the form of a survey plan — on 5 August 2022. This was passed on to the applicant the same day.

[8] In a nutshell, the applicant says that the respondents…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 224
Decision Date: 17 February 2023

CaseChat Overview and Summary

In Joe & Co Builders Limited v Thompson, the High Court of New Zealand considered an application by Joe & Co Builders Ltd to sustain a caveat over a property owned by Charles and Sandra Thompson. The applicant claimed that the vendors had not complied with their obligations under clause 6.1 of the Real Estate Institute of New Zealand standard form agreement for sale and purchase, which required them to ensure that all boundary markers required by the Cadastral Survey Act 2002 and related rules and regulations were in their correct positions at the settlement date. The respondents engaged a surveyor, who resurveyed the property and provided a report to both parties. The applicant argued that the respondents had not fulfilled their obligations under the clause, while the respondents maintained that they had complied with the clause following the surveyor's work.

The court found that the applicant had failed to establish an arguable case that the respondents had not complied with clause 6.1. The applicant's argument was based on two main points. First, the applicant argued that the respondents had not lodged a Cadastral Survey Data Set with Land Information New Zealand, which they claimed was a necessary step in complying with the clause. The court rejected this argument, stating that the contractual obligations of the vendors under the agreement for sale and purchase were separate from the statutory obligations of the respondents as the owners of the land. Second, the applicant argued that the respondents had not placed survey pegs at certain locations, including a missing peg on a metalled section of the property and the narrow strip of driveway encumbered in favour of other properties. The court found that the surveyor's evidence established that the absence of survey pegs in these locations did not mean that the respondents had not complied with clause 6.1, as the surveyor's work had located the correct positions of the boundaries and industry practice allowed for the absence of survey pegs in such circumstances.

As a result, the court found that the applicant had been unable to demonstrate to the necessary standard that there was an arguable or tenable case that the respondents had not complied with clause 6.1. The court therefore dismissed the application and ordered that the caveat would lapse at 4.00 pm, 15 working days from the date of the judgment. The court reserved the question of costs, inviting the parties to attempt to resolve the matter between themselves. If they were unable to do so, they could file memoranda in the usual way.

Orders