Lu Trustee Ltd v Parklane Infrastruct Ltd - [2020] NZCA 682

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA354/2020
[2020] NZCA 682

BETWEEN	LU TRUSTEE LIMITED AND HO NO. 2 TRUSTEES LIMITED Appellants
AND	PARKLANE INFRASTRUCT LIMITED Respondent

Hearing:	19 November 2020
Court:	French, Cooper and Gilbert JJ
Counsel:	K E Cornegé and J C Muggeridge for Appellant M E Casey QC and A J Casey for Respondent
Judgment:	22 December 2020 at 12 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe order made by the High Court that caveat 11635782.1 not lapse is set aside.
CThe caveat shall not lapse until the later of the events set out at [65(a) and (b)].
DThe respondent is granted leave to lodge a further caveat in respect of the newly created Lot 3 under s 146 of the Land Transfer Act 2017 only after the steps described in [65(b)] have been taken.
EThe parties have leave to apply for such further orders as may be necessary to give effect to the above orders.
F The respondent must pay the appellants’ costs calculated on a category 2 band B basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

The appellants, Lu Trustee Ltd and Ho No.2 Trustees Ltd, own land situated at 80 Laurent Road Cambridge (the Trinity land). They are partners in the Trinity Green Estate partnership (Trinity).[1]
[1]We refer to the appellants as “Trinity”.
On 29 May 2020, Moore J granted an application by Parklane Infrastruct Ltd (Parklane) under s 143 of the Land Transfer Act 2017 that a caveat it had lodged against the Trinity land should not lapse.[2] The order was conditional upon Parklane issuing a proceeding within 15 working days seeking specific performance of its rights under an alleged grant of an equitable easement relied on for the purposes of the caveat.[3] We were advised that the condition was complied with.
[2]Parklane Infrastruct Ltd v Lu Trustee Ltd [2020] NZHC 1182 [High Court judgment].
[3]At [50].
Trinity now appeals. It accepts that the issue of whether it agreed to grant an easement to Parklane, which it denies, is a matter that will have to be addressed at the substantive hearing of Parklane’s proceeding. But it argues on appeal that the High Court should not have concluded there was an arguable case that Parklane had an interest over the whole of the Trinity land, in particular over a part of the land that it intends to sell to a third party (Summerset). Essentially it argues on appeal that any caveat should be restricted to a part of its land, either by amendment, the imposition of conditions or providing for the existing caveat to lapse and granting leave to lodge a second caveat over the reduced area. If it does not succeed in reducing the area subject to the caveat, Trinity seeks further conditions, including provision of appropriate undertakings as to damages and satisfactory evidence of an ability to pay damages if it is established that there…

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: [2020] NZCA 682
Decision Date: 22 December 2020 at 12 pm

CaseChat Overview and Summary

Lu Trustee Ltd and Ho No. 2 Trustees Ltd (Trinity) appeal against an order made by Moore J that a caveat lodged by Parklane Infrastruct Ltd (Parklane) should not lapse. The appeal raises issues concerning the extent of the area of land over which the caveat should apply. Parklane relies on an alleged grant of an easement to support the caveat. Trinity accepts there is an arguable case that Parklane has an interest in the Trinity land. It argues however that the caveat should be restricted to the land it retains, which is the land described as Lot 3 in a subdivision plan. The appeal was allowed. The order that the caveat not lapse is set aside. The caveat shall not lapse until the later of the events set out at [65(a) and (b)]. Parklane is granted leave to lodge a further caveat in respect of Lot 3 under s 146 of the Land Transfer Act 2017 only after the steps described in [65(b)] have been taken. The respondent must pay the appellants’ costs calculated on a category 2 band B basis and usual disbursements.

Orders