Lindsay v Noble Investments Ltd
[2014] NZHC 2127
•4 September 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2013-409-001234 [2014] NZHC 2127
UNDER the Land Transfer Act 1952 IN THE MATTER OF
Caveat Number 9233653
BETWEEN
STUART ELLESMERE LINDSAY and
JULIE IVONNE LINDSAY Applicants
AND
NOBLE INVESTMENTS LIMITED Respondent
Hearing: 14 February 2014
Additional Submissions filed: 3 June 2014 and 4 June 2014
Counsel
(on this occasion):A C Hughes-Johnson QC for Applicants
P B McMenamin for RespondentJudgment:
4 September 2014
JUDGMENT (NO.2) OF ASSOCIATE JUDGE OSBORNE
as to application for order that caveat not lapse
Introduction
[1] By my first judgment on this application,1 I ordered that the applicants’ caveat not lapse until further order of the Court. I found that the respondent was entitled to an order that the caveat lapse to the extent it was affecting lots other than those which secured access from Lot 4 to Yaldhurst Road. I called for further submissions as to the extent to which the caveat affected lots other than those which
secured access from Lot 4 to Yaldhurst Road.
1 Lindsay v Noble Investments Limited [2014] NZHC 799.
LINDSAY v NOBLE INVESTMENTS LIMITED [2014] NZHC 2127 [4 September 2014]
Conclusions as to the Lindsays’ interest
[2] In the first judgment I stated my conclusions as to the Lindsays’ interests as
follows:
[101] For reasons parallel to those in my first judgment in Philpott,2 which I adopt, I conclude that the Lindsays as caveators have established a reasonably arguable case that by the 2002 agreement Noble granted the caveators an equitable easement which protected rights of access for roadway and services (being in the case of the Lindsays other than stormwater services).
[102] I further conclude that it is arguable that the Lindsays have not agreed to a variation of their contractual rights based on the spine road in part replacing Lot 22 for the purposes of providing road and services access. Hence it is arguable that the 2002 agreement giving rise to an equitable easement remains binding.
…
[112] The Lindsays … have an interest which needs to be protected so long as Noble cannot deliver legal access to Yaldhurst Road through the spine road. But there are titles of Noble which the Lindsays have caveated which are not required to reasonably protect the Lindsays’ interests in relation to access. The appropriate course before the Court finalises its order is to have counsel confer and to submit an agreed memorandum as to the lots which are therefore to continue to be subject to the caveat and those in relation to which the caveat will lapse. Failing agreement, I will finalise the order on the basis of memoranda to be filed.
[3] In Philpott v Noble Investments Ltd, on which I drew in the first judgment on this application, I had concluded:
[75] Thus it is arguable that the routes to be taken for the caveators’ right of way and various services have been sufficiently defined to constitute a caveatable easement interest. It undoubtedly suited Noble in the early stages of the development to retain flexibility as to final routes of roads and services, while at the same time understating [meant to be “undertaking”] to the caveators that they would be provided with the development. This case is unlike NZI v Philpott where there was a further step yet to be taken before the caveators’ interest in the specific land arose.
Submissions filed – the parties’ competing positions on road widening
[4] For the applicants, Mr Hughes-Johnston QC noted the finding in the first judgment3 that the Lindsays have a caveatable interest (over the relevant parts of
2 Philpott v Noble Investments Ltd [2012] NZHC 1431.
Noble’s land) so long as Noble cannot deliver legal access to Yaldhurst Road through
the Spine Road.
[5] Mr Hughes-Johnston accepted that, having regard to other findings in the first judgment, the caveat cannot be maintained in relation to Lot 18. In relation to the remaining Lots (11 – 17) he submits that the caveat needs to be maintained as access over part of each of those lots may be required to ensure that the applicants are assured of legal access to Yaldhurst Road.
[6] For the respondent, Mr McMenamin noted particularly a conclusion in the first judgment4 as to the requirements under Special Condition 19.2 of the parties’
2002 Agreement for Sale and Purchase. In Special Condition 19, the parties had provided for services, the second of which was the formation of a sealed vehicle carriage way. In his submissions, Mr McMenamin referred to this as the “road widening” subject matter of the first judgment. However, in that part of my judgment (paragraphs [59] – [73]), I was dealing with what was defined in the contract as the “Road Widening Area” which, in the case of the Lindsays, was their
southern-most strip of land in Lot 4 running alongside Lot 22 east-west.5 The
conclusions which I reached in the first judgment relating to the Road Widening Area related to what the applicants contended to be the respondent’s obligations to provide services (in that case, formation of road) on that stretch. My finding that it was not reasonably arguable that the Lindsays acquired through Special Condition
23 a caveatable interest in land owned by Noble6 related to the services obligation
under Special Condition 23 and not to the caveator’s subsequent argument, as to a
right in relation to easements.
Discussion
[7] The key conclusions which I reached in that regard are as summarised above
(at [2]). Those conclusions led to my finding at [112] in the first judgment that the
Lindsays have an arguable interest which needs to be protected so long as Noble
4 At [53].
5 At [69].
cannot deliver legal access to Yaldhurst Road through the spine road subject to my recognition that there would be titles not required to be caveated for such protection.
[8] Upon this basis it is only Lot 18 of the caveated title which falls within the category of titles which do not need to be caveated to reasonably protect the Lindsays’ interest in access to Yaldhurst Road.
Submissions filed – respondent’s submissions on vesting process
[9] Mr McMenamin developed an alternative argument in his submissions. He referred to the caveat focus of the applicants in seeking to protect Noble’s ability to fulfil its obligations so as to vest parts of the named lots as road. Mr McMenamin submitted that the Lindsays by their caveat were in fact seeking security for the performance of the contract rather than asserting a caveat which sprang from an equitable easement. He noted that parts of the land contained in Lots 11 – 18 may ultimately vest in the Christchurch City Council as a road. The additional land will only be required in that event. He submits that for the time being, Lot 22 remains a private right of way with no additional land required. The only right the Lindsays would have to pass over the additional land is if and when the additional land is vested in the Council. Mr McMenamin submitted that until the road vests there is no need for the additional land.
[10] Mr McMenamin’s submissions on this point were properly matters to be made the subject of submission at the initial hearing of the application. Those submissions were not made at that time, at least in that form. I have found in the first judgment that the Lindsays have a reasonably arguable case that by the 2002 agreement Noble granted them an equitable easement which protected rights of access for roadway and services.7 I therefore held8 that Noble was entitled to an order that the caveat lapse only to the extent it affected lots other than those which secured access from Lot 4 to Yaldhurst Road.
[11] It is not appropriate to reconsider that finding, submissions having been invited only on the consequential identification of the lots in the two categories.
7 At [101].
[12] Had it been necessary to decide the matter upon the basis of Mr McMenamin’s fresh submission in this regard, I would have rejected the submission. In doing so I would have simply been adopting the principles which I identified as emerging from the authorities, which I set out at [81] of my judgment. I would also have held that a caveat could justifiably protect the arguable equitable interest, even if the time for exercise of the rights protected would arise only in the future and then only if the affected land did not vest in the Council as road.
Outcome
[13] The single lot in relation to which the caveat must lapse is Lot 18. The caveat is not to lapse in relation to Lots 11 to 17 because parts of the land comprised in those lots fall within the area arguably protected by an equitable easement which protects the Lindsays’ rights of access for Lot 4 to Yaldhurst Road. Leave should nonetheless be reserved to Noble to apply for the caveat to lapse either entirely, or to a greater degree, if and when such land has vested in the Christchurch City Council so as to assure the Lindsays of their access to Yaldhurst Road.
Costs
[14] I will reserve costs. The Lindsays have been largely successful and I tentatively consider that costs must follow the event. In the event that the parties cannot agree on costs and disbursements, the applicant is to first file and serve a memorandum, (limit of four pages) to be responded to within five working days by the other party (limit of four pages). I will then determine costs on the papers.
Order
[15] I order:
(a) Caveat 9233653 shall lapse to the extent that it is lodged against
Identifier 440802;
(b)Caveat 9233653 shall, save to the extent identified in (a) above, not lapse;
(c) Leave is reserved to the respondent to apply for the lapsing of the caveat if caveatable land is to be vested in the Christchurch City Council so as to assure the applicants of legal access from Lot 4 to Yaldhurst Road;
(d) Costs are reserved.
Solicitors:
Dallison Stone, Christchurch
Counsel: A C Hughes-Johnson QC, Christchurch
K J McMenamin & Sons, Christchurch
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