NDM Construction Limited v North Ridge Living no.3 Limited
[2022] NZHC 320
•1 March 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-409-000530
[2022] NZHC 320
BETWEEN NDM CONSTRUCTION LIMITED
Applicant
AND
NORTH RIDGE LIVING NO. 3 LIMITED
Respondent
Hearing: 11 February 2022 Appearances:
R G Smedley and K L Vilsbaek for Applicant
M D W King and S R A Hayman for Respondent
Judgment:
1 March 2022
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 1 March 2022 pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
NDM CONSTRUCTION LTD v NORTH RIDGE LIVING NO. 3 LTD [2022] NZHC 320 [1 March 2022]
The application
[1] The applicant, NDM Construction Ltd (NDM), applies for an order under s 143 of the Land Transfer Act 2007 that a caveat lodged by it against land owned and being developed by the respondent, North Ridge Living No. 3 Ltd (NRL), not lapse.
[2] NDM claims it has a present interest in the land as purchaser under 19 agreements for sale and purchase dated 18 November 2020 between it and NRL.
[3] NRL opposes the application and asserts the agreements for sale and purchase were validly cancelled by it following non-fulfilment of a condition that it obtain all necessary consents for the subdivision of the land. Alternatively, NRL argues the Court should exercise its discretion and remove the caveat because, under the agreements for sale and purchase, NDM agreed not to lodge a caveat.
Background
[4] NRL is a property development company focusing on small to medium-sized residential developments. In or around late 2020, NRL acquired land at 64A Bayswater Crescent, Christchurch for development into residential sections (the land).
[5] At the time of purchase, NRL was aware the development would be challenging because of a unique set of features that included:
(a)a lack of engineering records for fill on the site;
(b)contamination by asbestos;
(c)the property was bounded by a waterway;
(d)the property was within the Christchurch City Council flood plain; and
(e)there is an ephemeral stream on the property.
[6] NDM is a Golden Homes franchisee and in the business of selling house and land packages.
[7] On 18 November 2020, NDM entered into 19 agreements for sale and purchase with NRL on equivalent terms, pursuant to which it agreed to purchase 19 sections to be created from the subdivision of the land (the agreements). NDM says it has since entered into agreements to on-sell 18 of those sections, along with dwellings it is to build.
[8] The agreements recognised that a new title was to issue for each section as a result of a subdivision of the land to be completed by NRL. The agreements were conditional on NRL obtaining all necessary consents for the subdivision of the land within six months of the date of the agreements (i.e. by 18 May 2021).
Clause 26.6 of the agreements relevantly provides:
This Agreement is conditional upon the Vendors obtaining all necessary consents for the subdivision on terms and conditions which are entirely satisfactory to the Vendors … within 6 months of the date of this agreement
…
[10] Clause 9.10 of the agreements is relevant to the operation of conditions. It relevantly provides:
If this agreement is expressed to be subject either to the above or to any other condition(s), then in relation to each such condition the following shall apply unless otherwise expressly provided.
The condition shall be a condition subsequent.
(2)The party or parties for whose benefit the condition has been included shall do all things which may reasonably be necessary to enable the condition to be fulfilled by the date for fulfilment.
…
(5)If the condition is not fulfilled by the date for fulfilment, either party may at any time before the condition is fulfilled or waived avoid this agreement by giving notice to the other. Upon avoidance of this agreement, the purchaser shall be entitled to the immediate return of the deposit and any other monies paid by the purchaser under this agreement and neither party shall have any right or claim against the other arising from this agreement or its termination.
[11] Each of the agreements contained a no caveat clause. Clause 27 reads as follows:
The Purchaser shall not register or cause to register a caveat against title to the property prior to issue of the new unit title to the property. Should the Purchaser or any of its associates or agents register a caveat over the title, the Purchaser shall be liable for all costs incurred by the Vendors in removing the caveat and for any costs which are consequential to the registration of the caveat.
[12] Prior to the agreements being entered into between NDM and NRL, NRL had engaged the multidisciplinary engineering, surveying and property development firm Davis Ogilvie & Partners Ltd to progress the development. It also commissioned a geotechnical subdivision report from Coffey Services (NZ) Ltd. It is not clear when these firms were engaged. Both provided reports which were subsequently provided to the Christchurch City Council in support of NRL’s subdivision resource consent application. It appears Davis Ogilvie’s report was provided in early November 2020 and Coffey’s report is dated 12 November 2020. Certainly, the Coffey report predates the agreements and it appears likely the Davis Ogilvie report does also.
[13] On 17 December 2020, Hugh Shearer, a development designer for NRL, attended a pre-resource consent application meeting with Christchurch City Council staff. Here, the key information requirements of the Council to progress a subdivision resource consent for the land were identified.
[14] Following 17 December 2020, NRL closed for the end-of-year holiday period. It is not clear when NRL reopened in the New Year. NRL’s director, John Shearer, says he cannot recall the exact date but believes it was mid-January 2021.
[15] At some point Davis Ogilvie was disengaged. In what appears to have been early February 2021, NRL engaged Graham Surveying Ltd to take over from Davis Ogilvie as lead surveyors for the development. Graham Surveying prepared the subdivision resource consent application for NRL, which was submitted to the Christchurch City Council on 20 April 2021.
[16] There were delays associated with processing the application for which NRL attributes fault principally to the Christchurch City Council. It was not until
2 September 2021 that the Christchurch City Council issued a set of draft subdivision consent conditions, which were reviewed. NRL provided responses to the Council on 10 September 2021.
[17] On 16 September 2021, the Christchurch City Council issued a further set of draft conditions. These included a requirement for managed retreat from the land if sea levels rose by 0.7 m, which the Christchurch City Council estimated would occur in 2090 (the Sea Level Condition). I understand that in this context managed retreat would require removal of all dwellings and infrastructure from the land.
[18] On 17 September 2021, Graham Surveying submitted further information to the Council as a result of which the Council advised, on 23 September 2021, that the Sea Level Condition was no longer required. NRL was advised of that change of position.
[19] On 4 October 2021, NRL’s former solicitors, Landley Law, wrote to NDM’s solicitors, Anthony Harper, purporting to cancel the agreements for non-fulfilment of clause 26.6. The letter referred to the Sea Level Condition (but not that the Council had advised it would no longer be required) and asked, rather cryptically, “We assume such consent notices being lodged on the new titles would be unpalatable to Golden Homes buyers?” The letter then went on to state that, notwithstanding the Sea Level Condition, NRL was cancelling the agreements for non-fulfilment of the condition relating to it obtaining all necessary consents.
[20] Also, on 4 October 2021, NRL instructed Graham Surveying to put the consent process on hold and the Council was advised accordingly.
[21]NDM lodged its caveat on 6 October 2021.
[22] On 13 October 2021, Daniel French, of Anthony Harper, emailed Sue Foley, of Landley Law, advising that NDM did not accept the cancellation of the agreements. The content of the email reflects the fact that NDM was not aware the Sea Level Condition was not required by the Council. The email stated:
There is nothing objectively wrong with the consent conditions from the vendor’s perspective. All lots are already subject to sale contracts to our client, so the conditions do not affect the vendor’s section sale prices. There is no liability risk to the vendor in completing the subdivision subject to the consent either. Our client approves the conditions of the consent, and your client will not have any obligations connected with the building removal/sea level rise condition and associated encumbrance, after the transfer of the land to our client occurs.
[23] NRL instructed new solicitors, Lane Neave. Lane Neave wrote to Anthony Harper on 2 November 2020. The letter is notable for the fact that it attempts to justify the cancellation of the agreements on the basis that the Sea Level Condition was not satisfactory to NRL. Relevantly it states:
In our view, the Sea Level Condition quite obviously amounts to an objectively unsatisfactory condition. However, as you are aware, per clause
26.6 of the agreements, [NRL] is entitled to consider consent conditions imposed by the CCC subjectively unsatisfactory and has full and complete discretion in determining this. [NRL] is acting in a bona fide way in determining the Sea Level condition unsatisfactory and its reasons for determining that are obvious, and not capricious as you suggest.
[24] On 3 November 2021, Land Information New Zealand gave notice to NDM that NRL had applied to lapse the caveat.
[25] On 8 November 2021, NDM learned from the Christchurch City Council that the Sea Level Condition had not been required since 23 September 2021.
[26] On 11 November 2021, Lane Neave wrote to Anthony Harper stating that NRL “has recently been advised that the CCC is now not going to require the Sea Level Condition” and that NRL no longer relied upon that in support of its position that the agreements had been validly cancelled. The letter went on to assert cancellation of the agreements was valid as all necessary consents had not been obtained within six months.
Caveat principles
[27] The relevant principles are not in dispute. In Philpott v Noble Investments Ltd, the Court of Appeal noted the following in relation to applications to sustain caveats:1
1 Philpott v Noble Investments Ltd [2015] NZCA 342 at [26] (footnotes omitted).
(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)When 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.
[28] On applications of this kind the Court ought not to finally determine the rights of the parties unless both consent, or the facts are not in dispute and the law has been fully argued.2 As Fisher J noted in Macrae v Rapana:3
… since this is merely an application to uphold a caveat pending a proper exploration of the parties’ rights at a substantive trial, this will not be the occasion for resolving any conflicts in evidence. Except where patently lacking in credibility on its face, the evidence advanced by and on behalf of the plaintiff should be accepted as correct for present purposes.
The issues
[29]All of the following matters appear to be accepted:
(a)When entered into on 18 November 2020 the agreements conferred on NDM an equitable interest in the land.4
(b)Clause 26.6 of the agreements is a condition subsequent in a binding agreement for sale and purchase.
(c)NDM’s interest was contingent upon, inter alia, fulfilment of the condition in cl 26.6.
2 Neil Campbell Campbell on Caveats (3rd ed, LexisNexis, Wellington 2019) at 10.020(a).
3 Macrae v Rapana High Court, Auckland, M633/94, 17/06/1994.
4 Bevin v Smith [1994] 3 NZLR 648, (1994) 2 NZ ConvC 191,915 (CA).
(d)Under cl 26.6, NRL was to obtain a subdivision resource consent (and all other consents for the subdivision) on terms and conditions satisfactory to it within six months of the date of the agreement (that is, by 18 May 2021).
(e)That NDM’s interest would not survive the valid cancellation of the agreements by NRL for non-fulfilment of cl 26.6.
(f)NRL was required to do all things reasonably necessary to obtain the subdivision resource consent by 18 May 2021.5
(g)A contracting party in the position of NRL cannot rely on the failure of a condition to cancel a contract where the failure was caused by its own default.6
[30] NDM says that NRL failed to take all reasonable steps to obtain the subdivision resource consent and the purported cancellation of the agreements was invalid so that its equitable interest in the land subsists.
[31] NRL says that it took all reasonable steps to obtain the subdivision resource consent and the agreements were validly cancelled.
[32] At the commencement of the hearing, Counsel agreed there are two issues that need to be determined, as follows:
(a)Has NDM put forward a reasonably arguable case that NRL failed to take all reasonable steps to obtain the subdivision resource consent by 18 May 2021 (in which case the purported cancellations were arguably ineffective).
5 Counsel proceeded on the basis that cl 9.10(2) of the agreements applied but in any event I consider such an obligation would generally be implied; see Mana v Fleming (2007) 8 NZCPR 469; [2007] NZCA 324 at [29].
6 D W McMorland Sale of Land (3rd ed, Cathcart Trust, Auckland, 2011) at 203.
(b)Should the Court refuse to sustain the caveat in any event when it was lodged in breach of the no caveat clause.
[33] During argument, Mr King raised an additional matter related to the first issue. He argues that the evidence establishes the subdivision resource consent could never have been obtained by 18 May 2021, so any failure by NRL to take some necessary step was not causative of the failure of the condition. In those circumstances, he submits, the caveat should not be sustained.
Issue one – did NRL take all reasonable steps
[34] Mr King, correctly in my view, submits the actions taken by NRL to obtain the subdivision resource consent are not to be viewed with the benefit of hindsight.7 He emphasised that the standard is one of reasonableness in the circumstances that existed.8
[35] In Mana v Fleming the Court of Appeal considered the application of cl 8.7(2) of the Real Estate Institute of New Zealand – Auckland District Law Society standard form agreement, 7th ed which, similar to cl 9.10(2) of the agreements, required parties for whose benefit special conditions were inserted to “… do all things which may reasonably be necessary to enable the condition to be fulfilled by the date of fulfilment.”9 The Court of Appeal made the following points:
(a)The obligation to “do all things” imposes an affirmative duty on a party to act or take positive steps to enable the fulfilment of the particular condition by its due date.10
(b)A party will be in breach of the obligation if there is something which was reasonably necessary but which was not done even though other necessary things were done. A thing is “necessary” in this context if it
7 Ansley v Prospectus Nominees Unlimited [2004] 2 NZLR 590; (2004) 5 NZ ConvC 193,914, at [23].
8 Mana v Fleming, above n 5.
9 Above, n 5, at [9].
10 Mana v Fleming, above n 5, at [30].
is required to bring about the stipulated result within the agreed period.11
(c)The word “reasonably” introduces a qualitative or relative measure of what is necessary; its effect is to modify the obligation by reference to what is reasonable in the circumstances and eliminate things that it would be unreasonable to require to be done in the circumstances.
(d)The word “reasonably” imports an objective standard, and performance is to be measured by applying that standard to the relative facts and circumstances. The Court is the arbiter of what is reasonably necessary in any case.
(e)To establish a breach of the obligation, it is sufficient that a party failed to do all things which may be reasonably necessary to satisfy the condition. It is not necessary to go further and establish that performance of those things would necessarily have brought about fulfilment of the condition.12
[36] NRL provided evidence from its director, John Shearer, and the director of Graham Surveying, Richard Graham, in relation to the steps that were taken to obtain the subdivision resource consent. It is not necessary for me to set out the evidence in detail. In my view, it is arguable that NRL did not satisfy its obligation to take all reasonable steps to obtain the resource consent by 18 May 2021 for the reasons that follow.
[37] NRL’s obligation was to take all reasonable steps to obtain the subdivision resource consent “in the circumstances”. An important circumstance was the unique nature of the property that created challenges both in its development, and in the preparation and processing of a subdivision resource consent application. John Shearer refers to the complexities that made the development challenging. Richard Graham says the consenting process was not straightforward because of the
11 At [31].
12 At [34] and cited in McMorland, Sale of Land, above n 6, at 206.
complexities of the site and, additionally, that it was his impression that those complexities meant the application was not prioritised by the Christchurch City Council.
[38] Another important circumstance is the subdivision consent was to be obtained within six months. The evidence of Mr Graham would suggest that such a timeframe would be tight. That is the heft of Mr King’s submission that, regardless of any fault on the part of NRL, the resource consent could not have been obtained by 18 May 2021. In those circumstances, NRL can reasonably have been expected to apply for the necessary resource consent without unnecessary delay and the occurrence of such delay would not be reasonable in the circumstances.
[39] On the evidence, such delays appear to have occurred. After the agreements were signed on 18 November 2020, there does not appear to have been any significant steps taken to obtain the subdivision resource consent until the appointment of Graham Surveying in early February 2021, apart from the attendance by Hugh Shearer at the meeting with the Christchurch City Council on 17 December 2020. If that is correct, two and a half months of the six month period within which NRL was to obtain the subdivision resource consent were effectively lost.
[40] NRL does not provide any satisfactory explanation for the apparent lack of diligence in pursuing the consent during that period. The relevant evidence from NRL’s perspective is given by John Shearer. In his affidavit, he refers to the early engagement of experts, Davis Ogilvie and Coffey’s, but, as noted above, it appears that their reports pre-date the agreements. It is apparent that at some stage Davis Ogilvie was disengaged but Mr Shearer does not say when. He refers to communications between the experts and his staff, and in particular Hugh Shearer, between October 2020 and December 2020 without any detail of those communications. Hugh Shearer has not made an affidavit confirming such communications or providing any detail of them.
[41] John Shearer says the company closed down for Christmas following the 17 December 2020 meeting with the Council, but he cannot recall exactly when he returned to work and, in any case, as I have said, there appears to have been no further
steps taken to advance the resource consent process until Graham Surveying was engaged in February 2021.
[42] Mr King argues there was nothing unreasonable in NRL closing for the holiday period and there would have been limited opportunity to advance the consent application because professional firms and the Christchurch City Council staff would be away on holiday. I accept there would be a relatively short period over the Christmas and New Year period where progress of the application would inevitably be delayed, but the delay that apparently occurred here is weeks longer than can be explained on this basis. There is also no evidence that relevant professionals or Christchurch City Council staff were not available.
[43] While it is of lesser significance, there appears to also have been an additional delay of 10 days between the filing of the subdivision resource consent application and the Council beginning processing it due to the non-payment of Council fees by NRL.
[44] A further matter raised by NDM concerns evidence of Richard Graham that Graham Surveying was instructed to progress the subdivision layout and engineering design to accommodate house designs and site layouts that Golden Homes intended to construct on the land. He said the design of the houses and foundations displaced additional flood water volumes in the cut/fill areas which had to be recalculated to allow for extra water displacement. It appears that this may at least have contributed to delays but, to the extent that such delays arose from attempts to accommodate NDM’s requirement, there is no evidence of consultation with NDM about that. There is an issue in my mind as to whether or not such consultation could be expected in circumstances where NDM’s requirements were a cause of delay in obtaining the subdivision consent.
[45] Another matter concerns the Sea Level Condition. It appears on what is before me that NRL sought to justify the cancellation of the agreements on the basis that the Sea Level Condition was not satisfactory to it when it was aware the Council would not impose that condition. While I accept Landley Law’s letter of 4 October 2021 was somewhat ambiguous on the point, there was no such ambiguity about Lane Neave’s
letter of 2 November 2021. In his affidavit, Mr Shearer attempts to justify NRL’s reliance on the Sea Level Condition on various bases, none of which are convincing.
[46] Mr King argued the Sea Level Condition is irrelevant to this application as NRL does not now rely upon it to justify its cancellation of the agreements. Mr Smedley, however, argues that the inference is open that NRL advanced the Sea Level Condition as a basis of cancellation because Mr Shearer was aware that NRL did not have a legitimate basis to cancel the agreements having not taken reasonable steps to obtain the resource consent. In my mind, that is an issue for trial.
[47] Finally, it is the case that complete knowledge of what steps were or were not taken by NRL to obtain fulfilment of the condition are at present known only to it. There is much in Mr Shearer’s affidavit that is unsatisfactory. I refer to his inability to recall relevant dates, the absence of explanations for what appear to be significant delays, the vague description of steps taken to advance the resource consent during periods where there appeared to be no progress at all, and the unsatisfactory explanations for NRL’s reliance on irrelevant matters such as the Sea Level Condition. In addition, it is a notable feature of Mr Graeme’s evidence that he attributes the blame for delays to failings of the Christchurch City Council in respect of which I have not heard the Council’s perspective. This is not a case where I am in a position to determine, with any confidence, whether all reasonable steps were taken by NRL to obtain the subdivision resource consent in the time that was available to it under the agreements. That issue is a matter for exploration at a substantive trial once the parties have had an opportunity to complete discovery and give their evidence.
[48] I can deal briefly with Mr King’s alternative submission that any fault on the part of NRL was not causative of the non-fulfilment of the condition. Mr King submits that I have to consider that the resource consent had still not issued by October 2021, so that even if the delays identified by NDM had occurred, they cannot have been causative of the non-fulfilment of the condition. I do not accept that submission for two reasons.
[49] First, on the facts it is not clear to me that the resource consent could not have been obtained by 18 May 2021 had all reasonable steps been taken. The position
advanced by NDM is that it is arguable that the condition could have been fulfilled by 18 May 2021 but for NRL’s failures. There appears to be some support for that position in the evidence of Mr Graeme. His evidence appears to be that without delays, which he largely attributes to the Council, it would have been reasonable to expect the resource consent to have been obtained within a period of four or five months.
[50] Second, Mr King’s argument erroneously assumes that such delays as in fact occurred after the application was submitted, would also have occurred had the application been submitted earlier. As a matter of common sense that is plainly not necessarily the case.
The no caveat clause
[51] Counsel agree the fact of a no caveat clause in an agreement between parties does not preclude the Court from sustaining a caveat in an appropriate case. They also agree the existence of a no caveat clause is a relevant consideration to be considered by the Court when considering whether to exercise its residual discretion to remove a caveat, notwithstanding that a reasonably arguable case has been shown for the claimed interest.
[52] In Mortre Holdings Ltd v ANCL Investments Ltd the Court of Appeal recognised that the existence of a no caveat clause may be a basis for the Court to exercise its residual discretion because the Court will not lightly condone a breach of contract, particularly where the term of the contract has an obvious commercial purpose.13 In this regard, the Court noted that caveats prevent the registration of instruments affecting the caveated land and therefore impose a severe practical impediment to a registered proprietor who wishes to deal with the land.14 This prohibition can stop a registered proprietor who is a developer, from arranging funding by preventing the registration of mortgages, or from registering instruments to effect a subdivision.15 The Court considered the threshold for exercising the discretion was not high while recognising a need for caution.16
13 Mortre Holdings Ltd v ANCL Investments Ltd [2016] NZCA 494, (2016) NZCPR 268 at [26].
14 At [21].
15 At [21].
16 At [26].
[53]At [28] the Court said:
In approaching the question as we have indicated, there will have to be good reason to sustain a caveat lodged in breach of an express contractual obligation. However, we recognise that in certain circumstances, including, for instance, repudiation by the registered proprietor or where there is evidence of prima facie fraudulent dealing, the discretion will not be exercised.
[54] Mr King argues that the lodging of the caveat constitutes a breach of contract which the Court should not lightly ignore. He submits the Court should also take into account the respective strengths of the parties’ cases. He submits the lack of prejudice to NDM if the caveat is not sustained is a relevant factor. The submission of a lack of prejudice was based on the failure by NDM to disclose the status of its on-sale agreements when there is evidence that it has invited purchasers to avoid their contracts. He also argues the prejudice to NRL is significant because the caveat prevents it from dealing with the land whilst having to pay debt associated with its purchase and development costs.
[55] For NDM, Mr Smedley argues this is a situation where NRL has repudiated the agreements and the caveat should be sustained to protect the interest of NDM. He also argues that, contrary to Mr King’s submission, there is no evidence that NRL is suffering any prejudice as there is no evidence it has sought to use the land to arrange funding, or that the caveat is preventing the registration of instruments, or that the caveat is affecting the completion of the development in any way.
[56] This is a contract between commercial parties with apparently equal bargaining power. NDM freely accepted the no-caveat clause. These are factors which weigh against the exercise of my discretion to sustain the caveat.
[57] However, that said, it can be inferred the principal purpose of the no caveat clause was a practical one; to prevent NDM from taking steps that impeded the subdivision of the land. That is not the circumstance that has arisen here. The evidence is that NRL has put the development on hold.
[58] Further, NDM has lodged the caveat in response to what it considers is a repudiation by NRL of the agreement. On what is before me, I consider NDM has
lodged the caveat as a means to protect its interest in the land which may be defeated should the caveat not be sustained.
[59] While I accept that the prejudice NRL may suffer as a result of the lodging of the caveat by NDM in breach of contract is a factor to be taken into account, there is insufficient evidence before me that there is in fact any relevant prejudice at the present time. There is, for instance, no satisfactory evidence the development cannot be completed, or that NRL intends to do so, that NRL is not able to raise funding, or that NRL is unable to obtain necessary consents.
[60] Weighing all matters in the balance, I consider my discretion should not be exercised to defeat NDM’s statutory right to lodge its caveat and I shall make an order sustaining it.
Result
[61] There shall be an order that pending further order of the Court, the caveat lodged on 6 October 2021 under Instrument No 12261299.1 against Record of Title 291596 shall not lapse.
[62] The order in [61] shall be subject to the condition that NDM is, within 21 days of the date of this judgment, to issue proceedings to sustain the interest claimed in the caveat and is to pursue the proceeding diligently to hearing.
[63] I reserve leave to NRL to apply to vary the order in [61] on seven days’ notice to NDM in the event that the condition in [62] is not complied with.
[64] NDM is entitled to costs. Mr King accepted that if the caveat was sustained, he could not resist an award of costs on a 2B basis. Accordingly, I award costs to NDM on a 2B basis plus reasonable disbursements as fixed by the Registrar.
O G Paulsen Associate Judge
Solicitors:
Anthony Harper, Christchurch Lane Neave, Christchurch
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