Marsden Resorts Limited v Shine Family Trustee Company Limited
[2024] NZHC 1947
•16 July 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-2365
[2024] NZHC 1947
BETWEEN MARSDEN RESORTS LIMITED
Applicant
AND
SHINE FAMILY TRUSTEE COMPANY LIMITED, GAVIN WILLIAM SHINE and
RAEWYN GAIL SHINE as trustees of the SHINE FAMILY TRUST
Respondents
Hearing: 6 March 2024
Further submissions received on 14 and 21 March 2024
Appearances:
JD Savage and EC Macpherson for the Applicant EJ Taia and JT Wilkinson for the Respondents
Judgment:
16 July 2024
JUDGMENT OF ASSOCIATE JUDGE SUSSOCK
This judgment was delivered by me on 16 July 2024 at 4.30 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Norris Ward McKinnon, Hamilton Franklin Law, Auckland
MARSDEN RESORTS LTD v SHINE FAMILY TRUSTEE COMPANY LTD [2024] NZHC 1947 [16 July 2024]
Introduction
[1] Marsden Resorts Ltd has applied to sustain its caveat over a property owned by the trustees of the Shine Family Trust.
[2] Marsden Resorts operates the Castaways Resort together with a portfolio of accommodation businesses throughout New Zealand. The Shine Family Trust and associated entities (collectively referred to as Shine),1 formerly owned the Castaways Resort.
[3] Shine remains the owner of part of the land on which the Castaways Resort is situated (Shine Land). Shine is also the lessee of Auckland City Council land on which the balance of the Castaways Resort is situated and subleases this to Marsden Resorts (Council Land).
[4] The contractual arrangements between the parties are recorded in a suite of contractual documents including:
(a)the original sale and purchase agreement in relation to the Castaways resort dated 1 March 2018 (Sale and Purchase Agreement);
(b)a deed of lease over the Shine Land dated 15 June 2018 (Lease); and
(c)a deed of sublease over the Council Land (Sublease).
[5] Both the Sale and Purchase Agreement and the Lease provide that Shine intends to carry out a subdivision on an area of Shine Land demarcated as the “Future Development Area.” A copy of the hand drawn plan attached to the lease and showing the Future Development Area is attached to this judgment.
[6] The Lease records that on completion of the subdivision Shine agrees to register the Lease against the new freehold certificate of title on the same terms and conditions as contained in the Lease. The Lease further provides that pending
1 These entities include other trusts associated with Gavin and Raewyn Shine. I do not differentiate between the various Shine entities as it is unnecessary for the purposes of this judgment.
registration Shine may not sell, transfer, assign or part with possession of “the Property” without the prior consent of the Tenant, not to be unreasonably withheld.
[7] The parties have had various disagreements in relation to their respective obligations, some of which are the subject of an arbitration. Marsden Resorts lodged a caveat over the Shine Land on 22 March 2023 concerned that Shine would alienate some or all of its land in breach of its obligations under the Lease (Caveat). Marsden Resorts describes its interest on the Caveat as being “[p]ursuant to a Deed of Lease dated 15 June 2018 between the Registered Owners as Landlord and the Caveator as Tenant.”.
[8] The Caveat is over the entire title, consisting of 47.7510 hectares and comprising three lots:
(a)Lot 150, 153–154 on deposited plan 571922; and
(b)Lot 209 on deposited plan 571993.
[9] Shine served a notice on Marsden Resorts for the Caveat to lapse on 27 September 2023.
[10]On 12 October 2023, Marsden Resorts applied to sustain the Caveat.
[11]Shine opposes the application to sustain the Caveat on three grounds:
(a)the Lease does not give Marsden Resorts a right to maintain a caveat over all of the Shine Land;
(b)the “Future Development Area” does not form part of the leasehold estate such that no caveatable interest can arise; and
(c)cl 58 in the Lease looks to the future and does not give Marsden Resorts a present caveatable interest.
[12] Shine seeks either that the Caveat lapse or alternatively that it is amended, such that it does not lie over Lots 154 and 209, relying on Lu Trustee Ltd v Parkland Infrastruct Ltd.2 Shine says that as a further alternative, the Caveat should be lapsed to allow a proposed subdivision to take place with Marsden Resorts granted leave to lodge further caveats.
Issues
[13]The issues are:
(a)Does the Lease arguably provide a present interest sufficient for the caveat to be sustained?
(b)If so, is that interest arguably in all or only part of the Shine Land?
[14] I set out the legal principles relating to sustaining caveats before discussing the issues above.
Legal principles—application that caveat not lapse
[15] The right to lodge a caveat is provided by s 138 of the Land Transfer Act 2017 (LTA), with the interest claimed required to fall within the interests described in that section. These include that the person claims an estate of interest in the land, “whether capable of registration or not”.3
[16] Section 138 makes it clear that a personal or contractual right is not enough. The caveator must show a current entitlement to a beneficial interest in the land under the caveat.4
[17] Section 138(3) requires the caveat to contain the prescribed information. This is set out in schedule 2 of the Land Transfer Regulations 2018. Relevantly, the caveat must include:
2 Lu Trustee Ltd v Parklane Infrastruct Ltd [2020] NZCA 682, (2020) 21 NZCPR 740.
3 Land Transfer Act 2017, s 138(1)(a).
4 Guardian Trust & Executors New Zealand Ltd v Hall (No 2) [1938] NZLR 1020 (CA) at 1025;
Philpott v NZI Bank Ltd (1990) ANZ ConvR 242 (CA) at 246.
A description of the nature of the estate or interest claimed by the caveator (which must be stated with sufficient certainty) …
Details of how the estate or interest claimed is derived from the registered owner.
[18] The legal principles relating to sustaining a caveat were summarised by the Court of Appeal in Green & McCahill Holdings Ltd v Ara Weiti Development Ltd:5
[80]The core principles covering applications to sustain caveats under s 143 of the LTA are those set out in this Court’s decision in Philpott v Noble Investments Ltd (drawing in turn on our earlier decision in Sims v Lowe): 6
(a)The onus is on the applicants to demonstrate that they hold an interest in the land that is sufficient to support the caveat, but they need not establish that definitively;
(b)It is enough if the applicants put forward a reasonably arguable case to support the interest they claim;
(c)The summary procedures involved in applications of this nature are not suited to the determination of disputed questions of fact. An order for the removal of a caveat will only be made if it is patently clear that the caveat cannot be maintained — either because there is no valid ground for lodging it in the first place, or because such a ground no longer exists; and
(d)Where an applicant has discharged the burden upon it, the Court retains discretion to remove the caveat which it exercises on a cautious basis. Before it does so the Court must be satisfied that the caveator’s legitimate interest would not be prejudiced by removal.
…
[83] Although summary process does not permit close engagement with contested facts, the court must still assess the arguability of the asserted case of a proprietary right realistically and interrogate the documentary record. As the Privy Council said in Eng Mee Yong v Letchumanan, a court is not required:7
… to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement in an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be.
Does the Lease arguably provide a present interest sufficient for a caveat?
[19]Shine submits that Marsden Resorts does not currently have a present interest
in the leasehold land sufficient to support a caveat. Counsel refers to a “triggering
5 Green & McCahill Holdings Ltd v Ara Weiti Development Ltd [2022] NZCA 218.
6 Philpott v Noble Investments Ltd [2015] NZCA 342 at [26]; Sims v Lowe [1988] 1 NZLR 656 (CA) at 659–660. Philpott was referred to with approval by the Supreme Court in Melco Property Holdings (NZ) 2012 Ltd v Hall [2022] NZSC 60, [2022] 1 NZLR 59 at [56].
7 Eng Mee Yong v Letchumanan [1980] AC 331 (PC) at 335–337.
point” obliging Shine to register the Lease; and points to steps in cl 58.1 that are required to be undertaken before the Lease may be registered. These steps are that:
(a)Shine needs to carry out a subdivision of the Future Development Area;
(b)Shine must complete the subdivision; and
(c)new freehold certificates of title must be issued.
[20] Shine submits that if any of the above steps do not happen, then any right to caveat by Marsden Resorts does not arise. Counsel for Shine says that the circumstances are akin to those in Kilmartin v Monk where the Court held that the caveat could not be sustained on the basis of the equitable mortgage because the equitable mortgage had not yet come into existence as no effective request had yet been made.8 Shine emphasises that the fact that the parties had agreed to delay registration supports Shine’s position that there is no present caveatable interest.
[21] Shine further points to cl 58.2 of the Lease which requires Marsden Resorts to pay Shine’s reasonable legal costs to register the Lease. Counsel says that if Marsden Resorts refused to pay, then Shine would be justified in refusing to register the Lease.
[22] However, unlike in Kilmartin v Monk, the interest that Marsden Resorts currently has prior to registration, an unregistered lease, is already an interest in the land.9 The Lease therefore currently gives Marsden Resorts an interest sufficient to support a caveat even prior to registration, as a lease does not need to be registered to be an interest in land.
[23] Clause 58.3 of the Lease expressly states that pending registration, Shine may not sell, transfer, assign or part with possession of the “Property” without the prior consent of Marsden Resorts, not to be unreasonably withheld.
8 Kilmartin v Monk (2005) 6 NZCPR 405 at [14].
9 DW McMorland and others Hinde McMorland & Sim Land Law in New Zealand (online ed, Lexis Nexis at [10.009(s)].
[24] Following the hearing the parties filed further submissions on whether cl 58.3 provided a right to caveat on its own. Because it is settled law that an unregistered lease provides a current right to caveat, I do not need to determine whether cl 58.3 provides a right to caveat on its own.
[25] Although neither counsel has been able to find a case considering a similar clause, in my view, cl 58.3 supports there being a present interest in the land as the purpose of a caveat is to protect the caveator’s interest from being defeated by registration of a dealing without the caveator having had an opportunity to invoke the assistance of the Court.
[26]I consider therefore that the Lease arguably provides a present interest in land.
Is Marsden Resorts’ present interest in all or only part of the land owned by Shine?
[27] Counsel for Shine submits that to answer this question it is important to establish what was actually leased by Marsden Resorts. As explained above, there are two existing leases between Shine and Marsden Resorts:
(a)the Lease in which Shine is the landlord; and
(b)the Sublease between Shine and Marsden Resorts in respect of land leased by Shine from Auckland Council.
[28] Shine submits that in a broad sense, the Lease relates primarily to buildings and the Sublease primarily to land.
[29] Shine relies on cl 26.1 of the Sale and Purchase Agreement which was entered into when Marsden Resorts first purchased the business and describes the lease that would be provided over the Shine Land. Clause 26.1 provides:
On the Settlement Date the vendor shall provide the purchaser with a duly executed Deed of Lease (executed by the Shine Family Trust) for the Balance Castaways Resorts and the buildings on the Castaways Resorts land on the terms and conditions set out in the Castaways Resorts lease notes attached to this Agreement under the heading Shine Family Trust Lease.
[30] Shine submits that the annexed lease notes set out the proposed terms of the Lease and Sublease, with the lease notes recording that the proposed lease would include:
(a)buildings on the Council Land;
(b)the Bersantai Day Spa, Tasman Room complex including baths, two bays of the adventure shed, and the linen shed;
(c)access to the Bersantai Complex and adventure shed; and
(d)the septic system.
[31] Shine says it is apparent from the lease notes that the parties treated land and buildings encompassing the resort differently and that this treatment followed on to other documents including the Lease. Counsel says this is evident from the definitions in cl 48 of the Lease which largely followed the definitions in the Sale and Purchase Agreement.
[32] Shine says that since the buildings comprising the premises are wholly included within Lots 150 and 153 the caveat ought not to be sustained over Lots 154 and 209.
[33] Counsel for Shine continues that the use of the term “Premises” in the Lease is clearly limited to buildings alone, some on Council Land and some on Shine Land. In counsel’s submission, the parties did not amend the definition of “Premises” to capture land despite this being raised in negotiations by Marsden Resort’s solicitors. Counsel says that there is therefore demarcation of land on the one hand, encompassed by the Sublease and Buildings on the Shine Land, captured by the Lease.
[34]Clause 49 of the Lease defines “Premises” as:
49PREMISES
49.1The Premises are:
(a)The Buildings on the land owned by Auckland Council at Karioitahi Gap Domain Recreation Reserve located at Karioitahi Beach as marked “A” on the Plan, namely the Restaurant and Venue complex, Office chalet, Accommodation chalet and Underlying office, Studio Units 21-24 and 26-29 inclusive excluding Chalets 2 – 18 and Units 25 & 30.
(b)The Buildings on the Balance Castaways Resort Land owned by the Landlord as shown on the Plan marked “B” namely the Bersantai Day Spa and Tasman Room complex, including baths, two bays of the adventure shed and linen shed.
[35] Counsel for Shine acknowledges that there appears to be an error as the definition refers to the areas marked “B” on the hand-drawn plan which are actually the Glam Camping areas rather than the Bersantai Spa, outdoor spa, adventure shed, and linen shed as counsel says is intended. But counsel submits that this does not undermine the fact that the definition of “Premises” is focussed on buildings, not land.
[36] Gavin Shine in his affidavit in opposition disputes Sajad Bassam Tabar’s evidence that Marsden Resorts and the trustees understood and operated on the basis that the Lease included other land on which the Business operates such as carparks and internal roadways. Mr Shine’s evidence is that Shine “did nothing of the sort”.
[37] Mr Shine says Mr Bassam Tabar’s evidence in relation to carparks is vague and that the first point to make is that there is no right to carparks in the lease. Mr Shine continues that referring to where Marsden may have parked the vehicles temporarily as “car parks” is disingenuous, saying that at one stage Marsden parked on an access way to the Bersantai Day Spa but this was never a carpark, it was an access way. Mr Shine also says that importantly the access way on which Marsden used to park vehicles to carry out its business is not on lots 154 and 209. Mr Shine further refers to the fact that the First Schedule does not include an amount beside “carparks” for annual rent.
[38] I do not accept that there is a clear demarcation so that the Lease relates to buildings only and the Sublease to land in the way Shine submits. I consider it is clearly arguable that the Lease includes both buildings and land for the following reasons.
[39] The Lease records on the cover page that the Landlord leases to the Tenant “the premises and the car parks (if any) listed in the First Schedule together with the right to use the common areas of the property… . The First Schedule then records besides “Car Parks”, “All carparks situated on the Premises”.
[40] Mr Bassam Tabar in reply refers to a carpark near the Bersantai Day Spa. The Lease therefore arguably includes car parks, which are not buildings. Shine appeared to suggest that all of the car parks were on Council rather than Shine Land but I do not accept that this is clearly the case.
[41] Furthermore, the lease notes referred to by counsel for Shine include for each of the Lease and Sublease “Car parks – all those on site” and “Full access rights to be granted by the Lessor to any other land … to enable the operation of the Business”. The lease notes as they relate to the Lease record that “A plan is attached to the lease showing these access rights”. But the plan attached to the Lease (and as attached to this judgment) is a simple hand‑drawn plan with no access rights specifically marked.
[42] Mr Shine says the access clause in cl 59 grants Marsden Resorts full access rights to the Premises to enable operation of the Business, with Shine retaining the right to direct Marsden Resorts over land owned by Shine. Mr Shine says Shine has complied with this requirement and is allowing access merely to undertake the Business. He continues that Shine “can direct Marsden over the title owned by the Trust and have done so”.
[43] But the access provision distinguishes between granting “full access rights” to the Premises to enable the operation of the business and “other access” required over Shine Land.
[44] The “full access rights” are said to be as shown on the plan attached. Unfortunately, the only plan attached was the plan attached to this judgment and it does not specify access rights. However the “full access rights” can only be changed with Marsden Resorts’ prior consent. Consent is not to be unreasonably withheld but Shine is not expressly entitled to direct Marsden Resorts to the area of land over which access is to be obtained.
[45] By contrast, where “other access is required over [Shine Land]”, cl 59 provides that Shine is entitled to direct Marsden Resorts to the area over which access is to be obtained.
[46] The outgoings clauses within the Lease provide further support for Marsden Resorts’ position. Clause 16 records that Marsden Resorts is to pay “a fair and reasonable percentage” as their proportion of the outgoings. Clause 18 records that outgoings include:
(a)the costs of maintenance of lawns, gardens and planted areas including plant hire and replacement and the cost of repair of fences; and
(b)yard and car parking area maintenance and repair charges.
[47] The usual exclusion in (b) above is struck out so that Marsden Resorts is required to contribute to the outgoings including for repaving and resealing yard and car parking areas.
[48] Clause 18 further refers to cl 50.1 which records that cl 18 is varied to insert further outgoings including:
…
(b)Maintenance costs relating to the water supply system;
(c)Maintenance of all buildings and grounds (both exterior and interior) & all on site services;
(d)Maintenance of roading and carparks.
[49] These provisions are consistent with the lease notes which record that the proportion of the outgoings payable will be 100 per cent with the outgoings listed as including “maintain all buildings, Interior & exterior, Car parks and roadways, grounds and all other on-site services”. The end of the lease notes however states:
To the extent systems and services (eg road, water) are shared by the Business and e.g, Glam Camping or the new development outgoings as referred to above under each lease are to be apportioned on a fair and reasonable basis.
[50] Mr Bassam Tabar in his affidavit in reply refers to Property Law Act notices served on Marsden Resorts for alleged arrears of outgoings including an invoice for “mill and fill asphalt repairs” referring to internal roads and carparks.
[51] Shine says that Marsden Resorts has not established that any of the internal roadways or car parks come within Lots 154 or 209 which are the two lots Shine is asking for the caveat to lapse in respect of.
[52] There are a number of issues with this. Shine relies on a survey plan prepared by Tripp Andrews, dated 26 October 2023, that shows Lots 150, 153, 154 and 209. Marsden Resorts’ evidence is that the first time they saw the survey plan was when Shine served its evidence in support of its opposition. Even now, having seen the survey plan, Marsden Resorts submits it is not clear where the lot boundaries are.
[53] I agree that although Shine says the lot boundaries and building locations are clear when the survey plan and the hand-drawn plan are overlaid, neither plan shows sufficient detail to identify where car parks and roadways are.
[54] In his affidavit, Mr Shine does not describe the survey plan in any detail, simply referring to it as an overlay of “titles as prepared by Tripp Andrews Surveyors”. The plan records that it is a “proposed subdivision of Lot 207 from Stage 4” so it does not establish the exact status of the various lots.
[55] The survey plan also includes a text box recording an “Amalgamation Condition” which states:
Amalgamation Condition
That Lot 153 hereon (Facility Lot) be held in the same ownership as Lot 209 hereon and that an individual Record of Title be issued to include both parcels.
That Lot 154 hereon (Facility Lot) be held in the same ownership as Lot 209 hereon and that an individual Record of Title be issued to include both parcels.
That Lot 150 hereon (Facility Lot) be held in the same ownership as Lot 209 hereon and that an individual Record of Title be issued to include both parcels.
[56] This condition was not discussed with counsel at the hearing but it brings further uncertainty as to exactly what the boundaries of each lot are and how titles are intended to be issued.
[57] In addition, the Glam Camping area is clearly in “Lot 209” as shown on the survey plan and Marsden Resorts says it still has an option in respect of Glam Camping. Shine’s evidence is that this option has lapsed. However, the date by which the option has to be exercised is defined as “the later of” 30 June 2019 and 30 days after Shine has provided Marsden Resorts with financial accounts.10 No evidence has been filed confirming that financial accounts have been provided so it is unclear whether the option is still available.
[58] In any event, the Lease includes an agreement to service the Glam Camping area. Mr Shine’s evidence is that this service agreement purely relates to the business itself, attaching a copy of this service agreement to his affidavit. However, this is the same agreement as the service agreement attached to the Lease which expressly records at the outset “[t]his agreement is to be included as a condition of the lease”.
[59]The following definitions in the Lease are also of assistance:
(a)“Business” means “the accommodation, weddings, conference and activities business carried out at … Waiuku, Auckland carried out on the Castaways Resort Land and the Balance Castaways Resort Land.”
(b)“Castaways Resort Land” means “that part of the Property Marked “A” on the Plan currently leased by [Shine] from Auckland Council under the Council Head Lease.”
(c)“Balance Castaways Resort Land” means “that part of the Property shown hatched on the Plan on which part of the Business is situated (namely the Day Spa, outdoor spa and Adventure Shed).”
10 The agreement providing the option to purchase the Glam Camping business is annexed as Schedule A to the Sale and Purchase Agreement.
[60] The definition of “Balance Castaways Resort Land” in the Lease is equivalent to the “Balance Castaways Resort” definition in the Sale and Purchase Agreement. Relevantly in the Lease, it refers to “Resort Land” not just “Resort”. It is therefore clearly arguable that the Lease relates to land and buildings instead of just buildings as submitted by Shine.
[61] The plan attached to the Lease is a very rough hand-drawn plan with certain areas marked on it. Areas identified on the plan are: Council Land marked “A”; the Glam Camping areas marked “B”; and the Future Development Area marked as “C”. There are then two additional hatched areas referred to as “2 bays of adventure shed” and “Day Spa and Baths” which are bracketed together and recorded as “Balance Castaways Resort”.
[62] Counsel for Shine submits that if the parties intended for the Lease to include all of the Shine Land then the Lease could just have specified that Marsden Resorts leases the Balance Castaways Resort Land owned by Shine.
[63] But equally if the Lease does not relate to the Future Development Area as Shine submits, the Lease could have defined “Balance Castaways Resort Land” to exclude the “Future Development Area”.
[64] As set out above, cl 58.3 of the Lease allows Marsden Resorts to withhold its consent to sale, transfer, assign or part with “the Property” (not to be unreasonably withheld). Rather than referring to “Property”, cl 58.3 could have referred to “Future Development Land” or “land on which the Premises are situated” but instead used “Property”. This is defined in cl 48 as “the property situated at 685 Kariotahi Road Waiuku, being the Business premises address described in the Sale and Purchase Agreement.” So until the intended subdivision results in titles being issued, Marsden Resorts has the right to withhold consent to the sale, transfer, etcetera of any of the Property.
[65] In these circumstances I do not consider it can clearly be said what part of the Shine Land Marsden Resorts’ interest is in.
[66] This case can therefore be distinguished from Lu Trustee Ltd v Parkland Infrastruct Ltd where the Court of Appeal held that it could not be reasonably argued that access was to be provided over the part of the land in issue.11 I note that in Lu Trustee the Court of Appeal sustained the caveat in any event until the deposit of the plan resulting in the separate titles for the land and the subdivision.
[67] It is settled law that a caveat will only be allowed to lapse where it is “patently clear that the caveat cannot be maintained”. There is clearly a dispute in this case as to what area the Lease actually covers. I therefore consider it is appropriate for the caveat to be sustained.
Is the description of the interest on the caveat sufficiently certain?
[68] Finally, counsel for Shine submits that the description of the interest on the caveat is not sufficient as it only refers to the Lease and not the particular clause relied on.
[69] Whether a description on a caveat is sufficiently certain is described by the authors of Land Law as follows:12
The essence of the matter is that it is a question of fact for the court in each individual case whether the registered proprietor could understand the nature of the interest being claimed and the basis on which it arises.
[70] In Buddle v Russell, Casey J held that a liberal approach was preferred as by following a strict line “we will lose the simplicity and speedy protection afforded by this procedure, which would be contrary to the whole philosophy of the Act”. 13 In Zhong v Wang the Court of Appeal approved this approach and held: 14
[53] … What is important is that the registered proprietor and the Court understand the nature of the interest claimed and the basis of that claim.
...
[58] The purpose of the caveat procedure is to enable those with proper claims to proprietary interests to protect themselves against loss by forbidding dealing with the land pending resolution of substantive claims. The
11 Lu Trustee v Parklane Infrustruct Ltd, above n 2, at [41].
12 John Burrows (ed) Land Law (online ed, Thomson Reuters) at [CV3.04(1)(a)]. See also Jian Hua Property Ltd v Cheng HC Auckland CIV-2006-404-3606, 27 September 2006.
13 Buddle v Russell [1984] 1 NZLR 537 at 539.
14 Zhong v Wang (2006) 7 NZCPR 488 (CA).
underlying purpose of the caveat regime could be undermined if too strict an approach were taken to the detail required to describe the interest claimed and its derivation from the registered proprietor.
[71] In Zhong v Wang the Court of Appeal noted that it might have been preferable for the caveat to refer expressly to a resulting or constructive trust but the Court concluded that the interest was stated with sufficient certainty because the registered proprietor understood the nature of the interest claimed and the basis for that claim.15
[72] I consider that the same can be said here. The caveat records that Marsden Resorts’ interest arises from the Lease and that is sufficient for Shine to understand the nature of the interest claimed and the basis for that claim.
Further orders
[73] Ordinarily when a caveat is sustained, it is on condition that proceedings are brought to determine the caveatable interest. It may be that this question is already the subject of the arbitration. I ask the parties to confer and confirm by memoranda (preferably joint) whether further orders are necessary. The memoranda are to be filed together with any submissions on costs as set out below.
[74] In this regard I note that Mr Bassam Tabar says in this affidavit that Marsden Resorts is not (and does not) want to impede any further development as that would be counterproductive to Marsden’s own interests.
[75] Furthermore, s 140 of the Land Transfer Act provides for the effect of a caveat against dealings and appears at 140(2)(i) perhaps to allow separate titles to be issued. It is not clear therefore that a caveat would impede the subdivision in any event.
Result
[76] The application by Marsden Resorts that its caveat not lapse is granted, with further directions to be made following the filing of memoranda if necessary.
15 Zhong v Wang, above n 15, at [53].
Costs
[77] Marsden Resorts has succeeded and so is entitled to costs. I ask the parties to confer and only if costs cannot be agreed to file memoranda on behalf of Marsden Resorts by 16 August 2024 and Shine by 30 August 2024.
Associate Judge Sussock
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