Matchitt v Pocock HC Gisborne CIV-2010-416-245

[2011] NZHC 655

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CIV-2010-416-245

BETWEEN  DOUGLAS PAUL MATCHITT Applicant

ANDBEVERLEY ANNE POCOCK Respondent

Hearing:         31 May 2011

Counsel:         D M O'Neill for the Applicant

G Brittain for the Respondent

Judgment:      4 July 2011

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 4 July 2011

At 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Scannell Hardy & Co, PO Box 219, Hastings 4201

Buddle Bentley McCleary, PO Box 43, Whakatane

Counsel:       D M O’Neill, PO Box 815, Hamilton 3240

G Brittain, PO Box 13 473, Tauranga

MATCHITT V POCOCK HC GIS CIV-2010-416-245 4 July 2011

[1]      Mr Douglas Matchitt (“Mr Matchitt”), has lodged a caveat (no. 7237505.1) against all the land known as Te Kaha Block 66.  That land is now divided into three separate certificates of title.   One of Mr Matchitt’s sisters (Beverley Pocock, the respondent)  is  the  registered  proprietor  named  on  two  of  the  titles.    One  of Mr Matchitt’s brothers, George, is the registered proprietor of the other.

[2]      Mr Matchitt now applies for an order that his caveat(s) not lapse under s 145 of the Land Transfer Act 1952 (“the LTA”).

[3]      Although the proceedings are brought in Mr Matchitt’s name only, it seems that the lodging of the caveat and the present application are supported by four of his other siblings and also by the estate of another of his brothers.

Factual background

[4]      The history and facts of this familial dispute are of some importance.

[5]      The dispute has its origins in the will of Mr Matchitt’s and Mrs Pocock’s father, George Phillip Matchitt (“George Matchitt senior”).  George Matchitt senior died on 21 November 1991.  Probate was granted on 23 March 1992.

[6]      The executors and trustees of the will were, as I understand it, the three eldest of  George  Matchitt  senior’s  children:  Mrs  Pocock,  George  Matchitt  junior  and Mihi Foy, who has since died.

[7]      Clause 5 of the will stated:

I give my Te Kaha 45A Block [now known as Te Kaha Block 66] unto my trustees upon trust to subdivide therefrom a residential section for the use as a camping site for all of my children except my said son Haki Matchitt and my said daughter Shona Matchitt and to sell the remainder of the said Block in the best manner and to hold the net profits thereof upon trust for all of my children except my daughter Shona Matchitt in equal shares.

[8]      At the time of George Matchitt senior’s death, he had nine children; the applicant, the respondent, and sons George (trustee), Haki and Ian and daughters Mihi (trustee), Lynne, Kim and Shona.  Haki has also since died.

[9]      Other parcels of land were dealt with in the will, including “Block 45B2” which has also subsequently been the subject of dispute.  That dispute appears now to have been resolved.  Although not relevant to the matters now at hand, the issues surrounding ownership and use of Block 45B2 are referred to from time to time in some of the documentation in evidence in this proceeding.

[10]     Clause 18 of the will stated:

I declare that  my Trustees  may sell  any parts  of my estate not  already consisting of money at such time or times (with full power of postponement whatever the nature of any such part) and upon such terms as they think fit.

[11]     The residue of the estate was bequeathed to George Matchitt senior’s wife (Kirimihia), who is the parties’ mother.  Kirimihia Matchitt died in February 1994. Under her will, the residue of her estate (which would include any property received as the residue of her husband’s estate) was to be shared equally between all her children.

[12]     Block 66 is approximately 1.6 hectares in size.  It comprises an elevated, flat, portion, a hilly area and a swamp.   There was, at the time of George Matchitt senior’s death, a bach situated on the block known as the “slaughter house” which had been used by the family for holidays.   It appears that most of the Matchitt siblings do not now live near the Block.

[13]     In 1992 Block 66 was transferred into the names of the three executors.   It seems  that  there  was  no  money in  George  Matchitt  senior’s  estate  to  fund  the subdivision contemplated by clause 5 of his will.  No subdivision occurred.

[14]     In late 1996 Mrs Pocock and her husband moved into the bach and then into a caravan on the Block.  They paid the rates.  The Pococks began to develop plans to build a house there and foundations for it had been laid by the middle of 1997. Around this time a fence to keep out cattle was put up around that part of the block containing the foundations.

[15]     Mr Matchitt became aware of these developments in early 1997.  He made attempts to call a family meeting and one was eventually held on 12 July 1997, on

Block 66 itself.   It appears that just prior to the meeting a draft deed of family agreement was drawn up and circulated.   That draft was to the effect that all the beneficiaries were agreed that the subdivision should not proceed and that title to the whole of Block 66 should be transferred into all the beneficiaries’ names.

[16]     Minutes of the 12 July meeting (prepared by Mr Matchitt) relevantly record Mr Matchitt’s concern that Mrs Pocock had begun the construction of a “campsite” without consultation with the other beneficiaries and had taken the position that others could not use the bach without her consent. The minutes ultimately recorded:

Because of the direction the meeting was going in regards to campsite and the batch Doug put the following proposal forward to try and benefit all owners not just one:

“That Bev keep her campsite and the meeting agree that an equal size site be divided equally among all remaining beneficiaries on the top flat part of Block 66.” and

“The old batch and the remainder of Block 66 remain as equal shares of all

beneficiaries”.

[17]     The minutes then state that “All owners agreed to this proposal”.

[18]     In evidence before me was a partial copy of legal advice dated the following month relating (inter alia) to the future of Block 66.  The advice was provided to George Matchitt junior as trustee and states (inter alia):

Do we take it from your statement that you wish to follow your father’s will to the letter in the light of absence of agreement between the beneficiaries that  you  wish  to  proceed  with  the  subdivision  of  [Block  66]?  ...  the adjourning [sic] land is limited access road.  Although the land is not Maori land, provided access is available it is possible to provide a subdivision either to vest the sections as freehold sections in the beneficiaries or to create a papakainga type of development vesting the total land in a trust with occupation orders in favour of each of the beneficiaries.  The remainder of the block could then be disposed of to recover funds for the development cost.

[19]     The advice then refers to the costs of effecting subdivisions and concludes:

Although the allocation of separate sections does not appear to be economic at this stage, we cannot conclude that it is impossible until all workings are completed and calculations of cost established.

[20]     It appears that nothing more was done by the beneficiaries or by the trustees

(in their capacity as trustees) to further the subdivision idea.

[21]     During 1999 and 2000 Mrs Pocock instructed surveyors and arranged for the construction of the house on the block at a cost of approximately $150,000.  A June

2001 surveyor’s report records the position of the existing fence around what was to become the boundary of the subdivision.

[22]     At some time after construction began (probably in late 2000) Mr Matchitt wrote a letter to the trustees.  In it he said:

At our Whanau meeting held on Saturday 12 July 1997 these were some of the reasons as to why the Trustees did not carry out their duties as to the specific directions of the “WILL” ie cut a residential section out for the use of all the family for a camp site:

Transit NZ requirements

Earthworks required

Too costly

Thats really funny because it didn’t stop a Trustee cut a section out and put a house up.  ...
In fact we thought we had settled it back at that 1997 meeting and the house
wasn’t an issue, but blown [sic] and behold the Trustees renegged on the
agreement in regards to Shona and Haki coming in as equal shareholders in 66.1
[23]	He   then   put   forward   two   alternative   proposals   to   the   trustees	and

beneficiaries.     The  first  involved  abiding  by  the  will  and  the  removal  of

Mrs Pocock’s house. The second was put in the following terms:

With the agreeance of all beneficiaries, Bev legally partitions and surveys an equal portion of 66 and holds a separate title only to that part.

All legal costs, resource consents etc at her expense.

Relinquishes any further ownership and Trusteeship to the remainder of the block (66), which includes the batch.

Haki and Shona become equal shareholders

Trustees to blocks 66 and 45B2 are dissolved and we start working together to benefit all concerned.

[24]     There is no record of a response by the trustees to this letter.

[25]     In 2001 the surveyor engaged by Mrs Pocock completed the first scheme plan showing the proposed subdivision.  On 10 March 2003 a survey plan was completed.

[26]     On 29 January 2005 a further family meeting took place at Tokoroa.   The minutes record that Mrs Pocock “has cut out her shares” and that she wished to resign as trustee of the remainder of the block.  Her resignation was accepted.  The minutes also state “everyone would like their names down on the Certificate of Title, at present it is under the Trustees names.”

[27]     On 29 March 2005 the formal subdivision of Block 66 into CT 192406 and

192407 was completed.  CT 192406 comprised approximately 2200 square metres in size or about 13 per cent of the total area of Block 66.  It was located on the top, flat, part of the Block.  On 5 May 2005 the land comprised in CT 192406 was transferred to Mrs Pocock.  On the same day the land comprised in CT 192407 was transferred to George Matchitt junior and Mihi Foy.   On 17 May 2005 Mrs Pocock granted a mortgage over the land described in CT 192406 in Westpac’s favour.

[28]     In July and September 2005 there was some email correspondence between Mr Matchitt and Mrs Pocock concerning the possibility of cutting out further individual sections from the block.  The first of these emails began by Mr Matchitt saying that “I want to know what you and Jim [Pocock] told us at the meeting about us cutting an individual section out without any hassles was above board.”

[29]     From  the  evidence  before  me  it  appears  that  Mr  Matchitt’s  hope  or expectation as to the ease with which further subdivisions could be effected was disappointed.  It is also possible that he misunderstood aspects of the process from the outset.  In any event, the documents disclose increasing frustration on his part.

[30]     The  resulting  tensions  appear  to  have  been  further  exacerbated  by  the discovery in September 2006 by Mr Matchitt that the bach on Block 66 had been demolished  by  Mrs  Pocock.     Mr  Matchitt  says  that  this  was  done  without consultation  with  the  beneficiaries,  a  fact  confirmed  in  a  letter  written  by Haki Matchitt before his death.

[31]    On 30 October 2006 a further letter was written and signed by all the beneficiaries to the trustees.  Essentially the letter reiterated past concerns (including lack of communication generally and the demolition of the bach) and requested again that the beneficiaries’ names be put on the title.   The letter referred to the possibility of legal action.

[32]     On 9 November 2006 George Matchitt junior became the sole registered proprietor of the land in CT 192407.   He has deposed that he regards himself as holding the land in trust pursuant to his father’s will.  It is unclear, however, whether the change in the registered proprietorship was the result of the death of Mihi Foy (George Matchitt junior’s affidavit states that she died in 2007).

[33]     On 7 December 2006 Mrs Pocock effected a further subdivision of the land that  had  been  transferred  to  her.    She therefore now holds  the land  under two certificates of title: CT 277697 and CT 277698.  Mrs Pocock now wishes to sell off the “back” (CT 277698) section to enable her to meet her debts, including the

mortgage to Westpac.2

[34] On 16 February 2007, Mr Matchitt lodged a caveat over all three certificates of title comprising the original Block 66. The content of the caveat is set out at [41] below. It has impeded Mrs Pocock’s ability to sell her back section; one potential sale has fallen over but there is now another potential purchaser who has erected a temporary dwelling on the property.

[35]     During 2008 work was done by Mrs Pocock’s surveyors demonstrating how the remainder of Block 66 could be divided into five separate sections (there now being only five remaining beneficiaries).

[36]     On 12 August 2010 a notice was issued by Westpac to Mrs Pocock under the

Property Law Act 2007 demanding payment of mortgage arrears of approximately

$30,000.  She has said that her indebtedness to Westpac now totals some $340,000.

[37]     Mr Matchitt has recently also filed related substantive proceedings against (inter alia) Mrs Pocock in the Rotorua High Court claiming damages for breach of trust: CIV 2011-470-291. Those proceedings are yet to have their first call.

Caveats: the relevant law and its application to this case

Statutory provisions and principles

[38]     Section 141 of the LTA provides that a caveat operates (subject to certain statutory exceptions) as a prohibition on registration of any dealing that might have the effect of charging or transferring or otherwise affecting the claimed estate or interest of the caveator.

[39]     An application that a caveat not lapse is made under s 145 of the LTA and essentially  asks  that  the  s  141  prohibition  be  retained.    Section  145  does  not, however, contain any guidance as to the basis upon which a decision under it is to be made.  The relevant principles are nonetheless well established.  Essentially they are that:

(a)       the onus is on the caveator to show that he has an arguable case that he has a specific legal or equitable interest in the land caveated;3

(b)once the onus is satisfied the balance of convenience will, in the normal  course,  and  in  the  absence  of  any  special  considerations,

weigh  in  favour  of  leaving  the  caveat  in  existence  until  the proceedings to enforce the interest claimed are tried;4

(c)      An order for removal of a caveat will not generally be made unless it is  particularly  clear  that  the  caveat  cannot  be  maintained  either because there is no valid ground for lodging it or because the valid ground for lodging it no longer exists.5

[40]     I therefore now turn to apply these principles to the present case.

Does Mr Matchitt have an arguable case for a caveatable interest?

[41]     Insofar as Mrs Pocock’s land is concerned, the description in the caveat of the nature of the interest claimed is as follows:

...  an  estate  in  cestui  que  trust  under  and  by  virtue  of  the Will  of  the Caveator’s ... late father ... and/or the Caveator’s mother ..., the registered proprietor Beverley Anne Pocock having illegally/fraudulently received ownership ... by virtue of the memorandum of transfer ... whereby ... George Matchitt, Leona Mihimaraea Foy and Beverley Ann Pocock as Executors of the Will of the ... late George Phillip Matchitt and/or the Will of the ... late Kirimihia  Matchitt  transferred  the  said  [land]  to  the  said  Beverley Ann Pocock notwithstanding that those three said Transferors were holding the said [land] as Executors for the beneficiaries of the Will of the said late George Phillip Matchitt and/or the Will of the said late Kirimihia Matchitt ...

[42]     This description contains two key components, both of which need to be examined more closely.

[43]     The first component relates to Mr Matchitt’s original beneficial interest in Block 66 as a whole that is said to have arisen as a result of clause 5 of his father’s will, namely the “estate in cestui que trust”.   Although it is arguable that more precision as to what kind of beneficial interest in the land was created by the will might be desirable I am prepared to proceed on the basis that this description is

adequate.   The trend of modern authority appears to be away from some of the strictness historically required in this respect: see for example Zhong v Wang.6

[44]     The second component relates to Mr Matchitt’s subsequent interest in the subdivided portions of Block 66 of which Mrs Pocock is now the registered proprietor.    Such  an  interest  could  only  exist  if  there  could  be  said  to  be  a constructive trust over the land arising as a result of Mrs Pocock’s breach of the clause 5 trust.

[45]     Although the terms of the caveat do not specifically refer to the existence of a constructive trust, I am prepared to accept for present purposes that its terms sufficiently  describe  the  circumstances  said  to  give  rise  to  such  a  trust  and Mr Matchitt’s interest as a beneficiary under it.  More particularly, I consider that the express reference to:

(a)       Mr  Matchitt’s  original  interest  in  the  land  arising  as  a  result  of clause 5 of his father’s will;

(b)      Mrs Pocock’s role as executor and trustee; and

(c)       the alleged fraudulent transfer

make the nature of the interest and the connection between this interest and the registered proprietor (Mrs Pocock) tolerably clear.

[46]     Whether or not Mr Matchitt is required to establish that he has an arguable claim both to a caveatable interest under clause 5 and a caveatable interest under a constructive trust was not the subject of submissions before me, although arguments in relation to the tenability of both his claimed interests were advanced.

[47]     It seems to me that I must certainly be satisfied of the tenability of the later claim  because  it  is  Mrs  Pocock’s  (otherwise  indefeasible)  title that  is  presently operative.  But the position in relation to the former seems to me to be less clear cut.

For example, if the transfer of part of Block 66 to Mrs Pocock was in breach of the clause 5 trust, Mr Matchitt might have a caveatable interest in the land even if the clause 5 trust itself had conferred on Mr Matchitt only a non-caveatable interest in Block 66, such as a licence to occupy.

[48]     In the event, however, it is unnecessary for me to decide this point.  That is because in my view both interests are at least arguably caveatable, for the reasons that follow.

[49]     In terms of any arguably caveatable interest arising under a constructive trust, Mr Brittain for Mrs Pocock contended that Mr Matchitt is estopped by his conduct from asserting that such an interest exists.  He said that Mr Matchitt was prevented from  asserting  fraud  or  a  breach  of  trust  on  Mrs  Pocock’s  part  because  he (Mr Matchitt) had agreed to everything that she (Mrs Pocock) has done.  Mr Brittain submitted that the evidence before the Court overwhelmingly and conclusively pointed to that conclusion, notwithstanding that that evidence has not been tested by cross-examination.

[50]     I have no hesitation in accepting that the evidence before me is insufficient to establish positively that  either Mrs Pocock or her fellow trustees have acted in breach of trust.

[51]     That said, however, the evidence suggests that none of the trustees ever made any real effort either to fulfil their obligations under the clause 5 trust or formally to vary the terms of that trust.  As I have noted above, clause 18 of the will gave the trustees a power to sell Block 66 in the event that subdivision was not possible or desirable but there is no evidence that they ever considered exercising that power. As well, the evidence suggests that the beneficiaries (including Mr Matchitt) were, on consecutive occasions, presented by Mrs Pocock with a series of faits accomplish: first the foundations, next the construction of the house and then the subdivision(s).

[52]     Notwithstanding the erection of a fence around Mrs Pocock’s section at a relatively early stage, it is a matter of genuine dispute whether or not her siblings were fully aware, before the event, of the extent of the proposed subdivision.  And

while the quantity of land transferred to Mrs Pocock is not, perhaps, excessive, it is nonetheless somewhat more than a 1/8 share and also constitutes the best site on the block.  I have little doubt that the fact that Mrs Pocock has since further subdivided her “campsite” and intends to sell part of it has added to the sense of grievance to which the absence of prior consultation gave rise.

[53]     Finally, although it is not in contention that Mrs Pocock has paid the rates on the property and financed her subdivision the reality remains that none of the other beneficiaries have yet derived any benefit whatsoever from clause 5 of their father’s will.

[54]     In all these circumstances and at this stage I am simply not prepared to conclude that Mrs Pocock has an unanswerable and complete defence to the breach of trust allegation.  The availability of a defence of estoppel would in any event be dependent on the cleanness of her own hands.  Again, however, that is not a matter about which I can fairly form a view in the context of the present application.   I therefore conclude that it is arguable that Mr Matchitt has a caveatable interest in Mrs Pocock’s land as a result of a constructive trust.

[55]     In terms of whether Mr Matchitt also had an (arguably) caveatable interest in Block 66 arising under the clause 5 trust prior to the transfer to Mrs Pocock I begin by recording that it was not contended by Mrs Pocock that the clause 5 trust was not valid, or that it had ever been formally varied.

[56]     On its face, clause 5  created  two different equitable interests.   The first interest (in relation to the “campsite”) arguably constitutes no more than a beneficial licence to occupy a yet to be determined portion of the land for the remainder of the beneficiaries’ lives.  As I have already noted above, a mere licence to occupy does not constitute a caveatable interest in land.

[57]     There is, however, an alternative interpretation of the first part of clause 5. This is that clause 5 requires that the whole of Block 66 is to be held on trust for the beneficiaries in equal shares but with the “campsite” portion to be retained for their lifetimes, while the remainder is sold in the interim for their benefit.  This seems to

be how clause 5 has been interpreted by the beneficiaries, who of course include Mrs Pocock herself and the other trustees.  Such an interpretation also addresses the otherwise vexing question of what would become of the campsite portion once all the beneficiaries have died.

[58]     In my view this second analysis is not untenable and (if such an argument prevailed) would result in the beneficiaries having a caveatable interest even in the “campsite” portion of the land alone.

[59]     Even if I am wrong in this, it is in my view also arguable that the second interest created by clause 5 is both caveatable and sufficient.   As stated by the learned authors of New Zealand Land Law:7

There is also an established rule that a beneficiary entitled to an interest in the proceeds of land held on trust for sale is entitled to caveat that interest.8

[60]     Although it is only a portion of Block 66 that is to be sold and in the proceeds of which the beneficiaries have an interest that is not necessarily an impediment to caveatability.  Authorities on the point were considered at some length by Associate Judge Doogue in Howard v Resort Developments Ltd.9     There the learned Judge began by referring to older cases in which it was held that a person claiming to be entitled to an interest in part of a parcel of land is entitled to lodge a caveat to protect

that interest only in respect of that part of the land to which that interest attaches. But he then referred to more recent Australian and New Zealand authorities which included  Re Hendersons  Caveat,10 a 1993 decision of the Queensland Court of Appeal. Of that case, Associate Judge Doogue said (at [27]):

... The caveator claimed that she had an agreement to acquire a 2 acre portion of a 42 acre parcel of land. The 2 acre section had been informally described in an agreement between the purchaser and the vendor. No subdivision of the land had ever been carried out. The purchaser took no steps to expedite the transfer of the 2 acres to her. Some years after the date of the agreement on learning that the then property owner was intending to sell the property in circumstances where her entitlement to the 2 acres would

7   T  Bennion, D  Brown,  R  Thomas and  E Toomey  New  Zealand Land Law  (2nd   ed,  Brookers

Wellington (2009) at [4.3.08(2)(c)].

8 The authorities in which the rule was established are given as Re Biefield (1894) 12 NZLR 596 (SC)

and Clausen v Densen [1958] NZLR 572 (SC), at 576-577.

9 Howard v Resort Developments Ltd (2007) 5 NZ ConvC 194,569 (HC), (2007) 8 NZCPR 505 (HC).

10 Re Hendersons Caveat [1998] 1 Qd R 632 (CA).

not be recognised, she lodged a caveat. She lodged the caveat against the title of the entire 42 acres. One of the key issues was whether the caveat could be defeated on the basis that it claimed an interest in the whole of the

42 acres. Macrossan CJ and Demack J at p 638 said:

“If the parties had agreed or evidence had been presented which at this stage established that the caveat should be amended to refer to a smaller parcel of two acres precisely identified, that would be one thing, but the two acre area has not yet been subdivided, nor does it have its boundaries exactly established by any decision of the Court on firm evidence agreed between the parties. The Court should therefore not hold that the caveat is too wide and attempt to order its restriction or amend it in some fashion. Until precision is established it seems correct to accept at the caveat stage that the respondent has an equitable interest sufficiently applicable to all (of the 42 acres).”

[61]     While in the present case the amount of land to be subdivided is not defined in terms of area, I consider that the analysis in the cases referred to in Howard arguably apply by extension.  If so, that would justify a caveat by a beneficiary over the whole block.  I therefore do not accept Mr Brittain’s submission that the trustees’ discretion as to the size of the subdivision renders the beneficiaries’ interest in the land inchoate or incontrovertibly uncaveatable.

The Balance of Convenience

[62]     As I have said, once the applicant has established a serious question to be argued the authorities make it clear that the balance of convenience will generally favour leaving the caveat in place until proceedings in which the caveator’s claim is asserted are determined.

[63]     In this case, however, the position is somewhat different.   Maintaining the caveat over Mrs Pocock’s land will have little practical effect, at least insofar as the most immediate threat to Mr Matchitt’s interest is concerned. That is because if Westpac apply to have the caveat removed from that parcel of land over which it has a mortgage,11 that application will very likely be granted.  At the time the bank took security over the property and  registered  the  mortgage it  had  no  knowledge of Mr Matchitt’s  interest  in  the land.   To  uphold  the caveat  contrary to Westpac’s

interest would be contrary to principle and frustrate the legitimate rights of the

mortgagee.12    Moreover I consider the beneficiaries’ interests would be likely to be better served if Mrs Pocock is permitted to sell the front section in order to meet her mortgage arrears.

[64]     For these reasons, I have formed the view that the caveat over the land comprised in CT 277698 (the back section) should lapse, on the condition that:

(a)      Mrs Pocock is first to file in this Court an affidavit that annexes proof of the quantum of her current mortgage to Westpac;

(b)Mrs Pocock is to file in this Court an undertaking that in the event of the sale of the land comprised in CT 277698 any part of the purchase price that remains after satisfying the Westpac mortgage over the land contained  in  CT  277697  will  be  paid  into  and  retained  in  her solicitors’ trust account, pending final resolution of CIV 2011-470-

291 or further order of this Court.

[65]     Just to be clear: the caveat over the back section will not lapse until these conditions have been complied with.  To that extent Mr Matchitt’s application under s 145 is declined.

[66]     Mr  Matchitt’s  application  that  the  caveats  over  the  land  comprised  in CT 277697 and CT 192407 not lapse is granted, on the condition that Mr Matchitt expeditiously pursues the resolution of CIV 2011-470-291.  In the event that there are unreasonable delays by him in progressing that matter Mrs Pocock has leave to apply further. A copy of this judgment is to be put on the CIV 2011-470-291 file.

[67]     In the event that George Matchitt, Mr Matchitt and the other beneficiaries are agreed that they wish to pursue subdivision of the land contained in CT 192407 or are otherwise agreed that the caveat can lapse they also have leave to apply further.

[68]     Because both parties have succeeded in part I direct that the costs of this application are to lie where they fall.

Rebecca Ellis J