Kiwi Trustee Limited v Lin - [2016] NZHC 595

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-131 [2016] NZHC 595

UNDER
the Land Transfer Act 1952

section 145A(3)

IN THE MATTER OF

an application that Caveat numbered
10285408.1 not lapse.

BETWEEN

KIWI TRUSTEE LIMITED Applicant

AND

QING LIN Respondent

Hearing: 7 April 2016

Appearances:

P F Chambers for Applicant
K Davenport QC and S J Callanan for Respondent

Judgment:

7 April 2016

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Henley-Smith Law (Mark Henley-Smith), Auckland, for Applicant
Lewis Callanan, Browns Bay, Auckland, for Respondent

Copy for:
Paul F Chambers, Barrister, Auckland, for Applicant
Kate Davenport QC, Auckland, for Respondent

KIWI TRUSTEE LIMITED v QING LIN [2016] NZHC 595 [7 April 2016]

[1] Kiwi Trustee Ltd applies under s 145A of the Land Transfer Act 1952 to sustain caveat 10285408.1. The interest claimed in the caveat is:

an equitable estate and interest arising from an agreement dated
30 September 1974 to allow unrestricted access to easement area B on
Deposited Plan 73050 over the Servient Tenement that being Lot 2
Deposited Plan 73050 in Easement Certificate 292731.3 known to and binding on the registered proprietor Qing Lin.

[2] Kiwi Trustee Ltd owns an eight hectare property at 1343 State Highway 16, Reweti. It is Lot 2 Deposited Plan 129690 on title identifier NA76A/358. That is the dominant tenement for the easement it claims. Mrs S Hart is a director of the company.

[3] Ms Qing Lin owns a neighbouring property at 1331 State Highway 16, Reweti. It is some 72 hectares in area, Lot 2 Deposited Plan 73050, Lot 4 Deposited Plan 116372 and Lot 2-3 Deposited Plan 201803, all shown on title identifier NA130B/550. The former owner of Ms Lin’s property is Mr Hart, Mrs Hart’s husband. Ms Lin became the registered proprietor of her property in June 2013 under an agreement for sale and purchase of November 2012. The ANZ Bank sold the property to her as mortgagee, exercising its powers of sale.

[4] The title to that property shows two registered water easements recorded in two easement certificates. They covered different parts of the property. One was registered in 1974 and the other in 1987. The dominant tenement for those registered easements is the property of Kiwi Trustee Ltd.

[5] Both sides accept that Ms Lin’s property, as the servient tenement, is subject to those registered water easements, and that she cannot prevent Kiwi Trustee Ltd as the owner of the dominant tenement exercising its rights under those easements. Kiwi Trustee Ltd says however that in addition to those rights under the registered easement, it has other rights under an unregistered equitable easement. Two rights were mentioned in particular. The first is the right to pass over other parts of Ms Lin’s property to access the land the subject of the water easement, in particular the right to enter the property from State Highway 16 and to travel along a driveway

to the property to access a pump shed within the easement area.…

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: [2016] NZHC 595
Decision Date: 7 April 2016

CaseChat Overview and Summary

Kiwi Trustee Ltd applied to sustain a caveat lodged over land owned by Qing Lin. Kiwi Trustee Ltd claimed an equitable easement over Lin's land in addition to the registered easements. The court considered whether Kiwi Trustee Ltd had a reasonably arguable case for the additional rights claimed. The court found that the rights claimed were not covered by the registered easements and were therefore outside the registered interest. However, the court held that any equitable easements that may have existed were discharged upon the transfer of the servient tenement to Lin, as the easements were not registered and Lin took title free of those interests. The court dismissed the application to sustain the caveat, finding it patently clear that Lin held title subject only to the registered easements. The court ordered the caveat removed and awarded costs to Lin.

Orders