Milne v Thompson - [2022] NZHC 937

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-002305

[2022] NZHC 937

UNDER Land Transfer Act 2017 and District Court Act 2016

IN THE MATTER OF

An application for orders that a caveat not

lapse and transferring a proceeding from the District Court

BETWEEN

GRAHAM ALLAN MILNE, MARILYN RUTH BEST, REX BRUCE SWENSEN and

JENNIFER MARIE MILNE, as trustees of the GREAT CHELSEA GARDEN TRUST

Applicants

AND

PHILIP CAMPBELL BROWNLEE THOMPSON and PARIN RAFIEI THOMPSON

Respondents

Hearing: 22 March 2022

Appearances:

P H Thorp for Applicants R J Latton for Respondents

Judgment:

5 May 2022

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by Associate Judge Andrew on 5 May 2022 at 3.30 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar

Date ……………………….

MILNE v THOMPSON [2022] NZHC 937 [5 May 2022]

Introduction

[1]These are caveat proceedings1 relating to a unit title complex in Birkenhead,

Auckland. The complex is subject to the Unit Titles Act 2010.2

[2] The property at issue, Accessory Unit 4,3 is a disproportionately large block4 to the rear of the complex and consists of a bush-clad gully. It is directly adjacent to the Rawene Reserve and sits below the Birkenhead shops. It was extensively damaged in a landslide in 2017.

[3] The Auckland Council has recently resolved to compulsorily acquire, if necessary, a substantial portion of the property. It intends to remediate the landslide.

[4] The applicants are the trustees of the Great Chelsea Garden Trust. The Trust has long sought to establish gardens on the property and the adjacent Rawene Reserve. They contend that they have a beneficial interest in the property on the basis of an agreement for sale and purchase entered into with the respondents,5 the current registered proprietors, in 2010. That agreement is conditional on a subdivision, which is yet to be undertaken, which would separate Principal Unit D6 from AU4.

[5] The respondents oppose any subdivision and say that the ASP is void and/or incapable of being performed because of the insurmountable legal hurdles that prevent any subdivision. They also say that the majority of owners in the unit complex oppose the subdivision proposals of the applicant and that they will agree to pay the applicants the proposed $93,500 compensation that Auckland Council will pay for the compulsory acquisition of the property.

[6] There are three critical issues for determination. They arise in the context of these summary proceedings, where the applicants must establish a reasonably arguable claim for a beneficial interest in the land:

1      Land Transfer Act 2017, s 143; an application that a caveat not lapse.
2      The UTA.
3      AU4, being the accessory unit for Principal Unit D.
4      5,550 square metres.
5      The ASP.
6      PUD.

(a)Is the ASP void ab initio because it breaches the decoupling prohibition in ss 53(1) and (7) of the UTA?

(b)Is the ASP otherwise incapable of being performed because the proposed…

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.

Continue reading Milne v Thompson

Details

AGLC: Milne v Thompson [2022] NZHC 937
Case: [2022] NZHC 937
Decision Date: 5 May 2022

CaseChat Overview and Summary

Milne v Thompson was an application to determine whether a caveat should be maintained in relation to a property in Birkenhead, Auckland. The applicants, as trustees of the Great Chelsea Garden Trust, sought to establish gardens on the property and the adjacent Rawene Reserve. They claimed a beneficial interest in the property on the basis of an agreement for sale and purchase with the respondents, the current registered proprietors. The respondents opposed the maintenance of the caveat and argued that the agreement was void and/or incapable of being performed due to legal hurdles preventing the proposed subdivision. The applicants argued that they had a reasonably arguable beneficial interest in the property and that the caveat should be maintained. The court considered three issues: whether the agreement for sale and purchase was void ab initio, whether the agreement was otherwise incapable of being performed, and whether the caveat should be allowed to lapse as a matter of discretion. The court found that it was reasonably arguable that the agreement was not void ab initio and that the applicants had a potential right of objection to a decision by the Body Corporate not to establish the proposed subdivision. However, the court concluded that as a matter of discretion, the caveat should be maintained as its removal could prejudice the applicants' legitimate interests. The court extended the interim order preventing the caveat from lapsing for a further six months, subject to the applicants taking reasonable steps to resolve the substantive proceedings and obtain the necessary subdivision consent. Costs were reserved for a later stage when more information was available.

Orders