Northwest Developments Limited v Ling
[2019] NZHC 1023
•10 May 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-2399
[2019] NZHC 1023
BETWEEN NORTHWEST DEVELOPMENTS LIMITED
PlaintiffAND
KE LING
Defendant
Hearing: 1 May 2019 at 10:00am Appearances:
M J Fisher and K J Ng for the Plaintiff A J B Holmes for the Defendant
Judgment:
10 May 2019
JUDGMENT OF ASSOCIATE JUDGE R M BELL
This judgment was delivered by me on 10 May 2019 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules.
…………………………………
Deputy Registrar
Solicitors:
Castle/Brown (C Girven), Newmarket, Auckland, for the Plaintiff Pidgeon Law (J M Pidgeon), Auckland, for the Defendant
Counsel:
M J Fisher/K J Ng, Erskine Chambers, Auckland, for the Plaintiff
A J B Holmes, Chancery Street Chambers, Auckland, for the Defendant
NORTHWEST DEVELOPMENTS LIMITED v KE LING [2019] NZHC 1023 [10 May 2019]
[1] Northwest Developments Ltd as vendor sues Ke Ling as purchaser for specific performance of an agreement of 24 May 2016 for the sale of Lot 65 of its subdivision at 81 Nobilo Road, Huapai, Auckland. It has applied for summary judgment.
[2] The single issue is whether Ke Ling was entitled to cancel the contract on 6 September 2018 under a condition requiring that title for the lot should issue by 31 March 2018. The case turns on cl 24.2 of the agreement:
24.2 Should title not issue by 31 March 2018 then either party may cancel the agreement by giving written notice to the other party notifying them that the agreement is now terminated. Provided however that in the event that the vendor has submitted the survey plan for approval to LINZ the vendor may at its sole discretion, prior to 31 March 2018, notify the purchaser that the time for satisfaction of this condition has been extended for a further 6 months.
Title did not issue until 11 September 2018. Northwest says that on 16 February 2018, it extended time under the proviso in cl 24.2. Mr Ling, however, denies that the extension was effective. The point of difference is whether Northwest had submitted the survey plan for approval to LINZ before it gave notice on 16 February 2018. Northwest did submit a survey plan, but Mr Ling says that it was not the survey plan. He says that the deposited survey plan that led to the issue of titles was lodged after 31 March.
[3] In my judgment Northwest was entitled to extend time under the proviso to clause 24.2 because it had already lodged a qualifying survey plan on 1 November 2017. While it later lodged a replacement plan after 31 March 2018, that does not mean that the condition for giving notice to extend time had not been met. Because title did issue within the extra six months, Ke Ling was not entitled to cancel for non- satisfaction of clause 24.2. He should be ordered to perform the agreement.
[4] In Krukziener v Hanover Finance Ltd the Court of Appeal re-stated the principles on which a plaintiff’s application for summary judgment is decided:1
[26] The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that
1 Krukziener v Hanover Finance Ltd [2008] NZCA 187 at [26]-[27].
there is no real question to be tried. … The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated. … The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: … In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it. …
[27] Under r 141A, the defendant need not file a statement of defence. The onus remains on the plaintiff, and summary judgment will be denied if on the hearing of the application it appears that there is an issue worthy of trial.
(Citations omitted)
Subdivision under the Resource Management Act 1991
[5] As the case concerns the steps by which land is subdivided, the legislation on subdivision provides context for the facts of this case and the parties’ agreement. I have used the version of the Resource Management Act 1991 in force at 30 April 2016. I deal only with the parts relevant to this case.
[6] Subdivision is controlled under the Resource Management Act. Section 11 of the Resource Management Act imposes a prima facie restriction on subdivision and states the circumstances in which subdivision may take place. Northwest relies on this gateway:
(1) No person may subdivide land, within the meaning of section 218, unless the subdivision is—
(a)both, first, expressly allowed by a … a resource consent and, second, shown on one of the following:
(i)a survey plan, as defined in paragraph (a)(i) of the definition of survey plan in section 2(1), deposited under Part 10 by the Registrar-General of Land; or
[7]The relevant parts of the definition of ‘subdivision of land’ in s 218 are:
218 Meaning of subdivision of land
(1)In this Act, the term subdivision of land means—
(a)the division of an allotment—
(i)by an application to the Registrar-General of Land for the issue of a separate record of title for any part of the allotment;
…
And the relevant parts of the definition of ‘Allotment’ in s 218(2) are:
(2)In this Act, the term allotment means—
(a)any parcel of land under the Land Transfer Act 1952 that is a continuous area and whose boundaries are shown separately on a survey plan, whether or not—
(i)the subdivision shown on the survey plan has been allowed, or subdivision approval has been granted, under another Act; or
(ii)a subdivision consent for the subdivision shown on the survey plan has been granted under this Act; …
[8]‘Survey plan’ is defined in s 2:
survey plan has the meaning set out in the following paragraphs, in which cadastral survey dataset has the same meaning as in section 4 of the Cadastral Survey Act 2002:
(a)survey plan means—
(i)a cadastral survey dataset of subdivision of land, or a building or part of a building, prepared in a form suitable for deposit under the Land Transfer Act 1952; …
[9] A subdivision consent is invariably subject to conditions. Some conditions must be carried out before title can issue; others are to apply after titles issue. The latter are the subject of consent notices under s 221 of the Resource Management Act.
[10] An applicant seeking a subdivision consent will typically have its surveyors prepare an indicative subdivision plan, sometimes called a scheme plan. While that plan may be used for the application and the subdivision consent, it is not the survey plan used to create new titles. For new titles to issue a survey plan must be deposited. Section 224 of the Resource Management Act states the requirements for the deposit of a survey plan. One is that the territorial authority must have approved the survey plan under s 223. Under that section the territorial authority is required to approve a
survey plan submitted to it if a subdivision consent has been granted and the survey plan conforms with the subdivision consent.
[11] One of the requirements under s 224 is a “s 224(c) certificate”, a certificate by the territorial authority that it has approved the survey plan and that the conditions of the subdivision consent have been complied or that appropriate measures have been taken to ensure future compliance with conditions.
[12] The survey plan must also be submitted to LINZ for approval as to survey. Mr Ling’s expert witness, Mr Jones, describes the LINZ approval process:
30. In deciding whether to approve a survey plan LINZ (formerly the Surveyor-General) will consider whether the digital cadastral dataset, prepared and lodged by the surveyor in the LandOnline system, complies with all of the relevant legislation and regulations in relation to surveys, such as the Cadastral Survey Act 2002 and the Rules for Cadastral Survey 2010 (which relate to the accuracy and form of cadastral datasets).
31. LINZ will also assess whether the survey plan is a “fit” within the New Zealand survey cadastre held in LandOnline. As part of this process LINZ will ensure that all of the relevant survey marks and the drawing of the survey plan submitted fits within the underlying cadastre.
32. The role of LINZ in approving a survey plan is to ensure, in a practical sense, that land in the survey plan fits in to the cadastral matrix. The cadastral survey data submitted by the surveyor must fit within the “cadastre” (defined in section 4 of the Cadastral Survey Act 2002 as “all of the cadastral data held by the Crown”). This process normally takes 10 to 15 working days. Once that process has been completed, and the plan has approved, LINZ will confirm that the survey plan is “approved as to survey”. LINZ will only deposit a plan that has been approved as to survey.
[13] Once the requirements of s 224 are met and a survey plan is deposited, certificates of title can issue for any land shown as a separate allotment on a survey plan.2
Northwest’s subdivision at 81 Nobilo Road, Huapai
[14] Northwest subdivided its property at 81 Nobilo Road, Huapai into 85 residential lots. Its planned subdivision provided for roads to vest in the local authority. Those roads run along two boundaries of the subdivision. Northwest
2 Resource Management Act 1991, s 226(1)(a).
contributed half the road width from its land, and the neighbouring owners were to contribute the other half from their properties which were also being subdivided.
[15] On 10 June 2016 Northwest obtained a subdivision consent for 81 Nobilo Road. In September 2017 it applied to the Auckland Council for a certificate under s 224(c). The council issued the certificate on 8 December 2017, so recording its approval of the survey plan under s 223 and that the consent conditions had been satisfied or that appropriate measures were in place to ensure their compliance. That survey plan, LT 509469, had been submitted to LINZ for approval as the survey in October 2017. LINZ approved it as to survey on 1 November 2017.
[16] Titles could not issue yet. The council had still to give its consent under s 224(c), but as noted, that was given in December. As another requirement, Northwest needed the co-operation of its neighbours, who were also subdividing their properties. Various owners carrying out developments in Nobilo Road had a written agreement to co-operate with each other on the approval and deposit of survey plans. The owners of the property to the immediate north of Northwest’s land, 77 Nobilo Road, refused to give their consent. On 2 November 2017 Northwest began a proceeding against the owners of 77 Nobilo Road seeking specific performance of the agreement to compel them to give their consent to Northwest’s survey plan. Northwest successfully applied for summary judgment, but judgment was not given until 13 July 2018.3 The defendants filed an appeal against that decision and applied for a stay of execution, but on 23 August 2018 they changed course and gave their consent to the deposit of Northwest’s survey plan.
[17] This was not, however, survey plan LT 509469. The surveyors had prepared a new plan, LT 522391. The new plan was required because of the way Northwest’s neighbour to the west, the owner of 69 Nobilo Road, was carrying out its subdivision. Northwest became aware during January 2018 that the owner of 69 Nobilo Road, GSC Holdings Limited, had decided to obtain approval as to survey of its subdivision on the basis that it would not require the consents of the owners of 77 Nobilo Road or of Northwest as owner of 81 Nobilo Road. GSC Holdings Limited did this by excluding
3 Northwest Developments Ltd v Zhang [2018] NZHC 1736, (2018) 19 NZCPR 726.
from its subdivision plan that part of 69 Nobilo Road that had been set aside for road reserve and roading. Northwest realised that if GSC Holdings Limited’s plan were to deposit first, before its own plan LT509469, Northwest would need to submit a new plan to take account of the new titles created by GSC Holdings Limited’s plan. Northwest learned during March 2018 that GSC Holdings Limited’s plan had deposited. That was before judgment had come out in the proceeding against the owners of 77 Nobilo Road.
[18] So, Northwest’s surveyors prepared a new survey plan, LT 522391. Auckland Council approved the plan under s 223(1) on 27 March 2018. The surveyors submitted the new plan for approval as to survey on 5 June 2018. When the surveyors submitted that to LINZ, they advised that the earlier plan, LT 509469, would not deposit. Northwest’s surveyor says that LINZ made requisitions, changes were made, and a revised version was submitted on 19 June 2018 which LINZ approved as to survey on 20 June 2018. LT 522391 deposited on 11 September 2018 and titles for the lots in the subdivision issued on that date.
[19] LT 509469 and LT 522391 both show Northwest’s subdivision of its land as contemplated by the agreement for sale and purchase with Mr Ling and show boundaries of neighbouring lots. The changes in LT 522391 reflect the alteration in boundaries as a result of GSC Holdings Limited’s plan having deposited, but there are no differences between the two survey plans in Northwest’s proposed subdivision of the lots within its land. In other words, the changes from LT 509469 to LT 522391 were made to ensure the appropriate cadastral fit, but not to alter the subdivision of lots on Northwest’s land.
The agreement between Northwest and Mr Ling
[20] On 24 May 2016 Northwest entered into a written agreement with Mr Ling to sell lot 65 in the subdivision for $467,500. At the time of the agreement, Northwest Developments Ltd had still to:
(a)obtain a subdivision consent under s 11 of the Resource Management Act to create new lots at 81 Nobilo Road and to carry out any works required under the subdivision consent;
(b)obtain the territorial authority’s approval of the survey plan under s 223 of the Resource Management Act;
(c)obtain a certificate under s 224(c) of the Resource Management Act by the territorial authority certifying that the conditions of the subdivision consent had been completed to the satisfaction of the territorial authority and that consent notices had been given for other conditions;
(d)lodge the survey plan with LINZ for approval; and
(e)obtain the issue of new certificates of title for each of the lots.
[21] The agreement for sale and purchase was in the Real Estate Institute of New Zealand/Auckland District Law Society form.4 It had special terms that showed that Mr Ling was buying a lot in a proposed subdivision. A proposed Plan of Subdivision was attached as schedule A to the agreement. The terms included:
19.2 The Agreement is conditional upon the Vendor obtaining resource consent by 30 September 2017. If the Vendor has not received resource consent by that date, the Vendor may in its sole discretion extend this date for a further 6 months.
…
20.2 The Vendor shall assume as soon as practicable after the issue of all consents required to obtain a separate certificate of title for the property and at the vendor’s cost carry out all works (including development works) necessary to subdivide the land comprised in computer freehold register NA 66A/206 (“the Head Title”). The Vendor will also use its best endeavours to have the Plan of Subdivision deposited at LINZ as soon as reasonably practicable to create a separate computer freehold register for the property.
…
23.1 The Vendor gives no warranty to the purchaser as to when the plan will be deposited with LINZ, nor as to when the purchaser will be able to register a transfer instrument of the property to the purchaser. The purchaser
4 Real Estate Institute of New Zealand/Auckland Law Society form (9th ed 2012 (3)).
acknowledges that time shall not be of the essence in regards to the issue of separate computer freehold registers.
…
24.1 The Settlement Date is the date being 10 working days following the date when the purchaser’s solicitor is advised by the Vendor or its solicitor that a search copy (as defined by section 172A of the Land Transfer Act 1952) of the certificate of title to the Property is available.
24.2 Should title not have issued by 31 March 2018 then either party may cancel the agreement by giving written notice to the other party notifying them that the agreement is now terminated. Provided however that in the event that the vendor has submitted the survey plan for approval to LINZ the vendor may at its sole discretion, prior to31 March 2018, notify the purchaser that the time for satisfaction of this condition been extended for a further 6 months.
Other special conditions are not relevant. The interest rate for late settlement was 15 per cent per annum.
[22] Mr Ling carried out due diligence and paid the deposit. On 27 July 2016, Northwest’s lawyers wrote to Mr Ling’s lawyers proposing a variation to the sunset date in cl 24.2 of the agreement by extending it to 31 October 2018. Mr Ling’s lawyers advised that he did not agree.
[23] There was ongoing correspondence in which Northwest’s lawyers told Mr Ling’s lawyers of progress.
[24] On 16 February 2018, Northwest’s lawyers advised Mr Ling’s lawyers that LT 509469 was approved as to survey by LINZ on 1 November 2017 and that the Auckland Council had given a certificate under s 224(c) of the Resource Management Act on 8 December 2017. The letter also said:
However, delay has arisen in our lodging our documents for the plan to deposit titles to issue as a party whose consent is required to the deposit of our client’s plan has been uncooperative, despite having contracted to co-operate in all things to enable the plan to deposit and titles to issue.
Court proceedings have been commenced to compel that party to perform its contractual obligations to co-operate. The hearing is to take place later this month. While we are confident of success in the proceedings, the delay in our lodging of our documents for the plan to deposit to issue has raised concern that title may not be issued before 31 March 2018 (clause 24.2 of the agreement).
Accordingly, as a precaution only, pursuant to the proviso of clause 24.2 of the agreement, our client hereby exercises his right to extend the “sunset date” of 31 March 2018 for a further six months.
[25] On 27 August 2018, Northwest’s lawyers advised Mr Ling’s lawyers that they had lodged documents with LINZ for the plan to deposit and titles to issue. They expected that to occur within two to three weeks.
[26] Up until this stage, Mr Ling had been represented by one Auckland law practice, but he then instructed a new lawyer. She wrote to Northwest’s lawyers on 6 September 2018 giving notice that Mr Ling cancelled the agreement for non- satisfaction of the condition in cl 24.2 as to issue of title. She advised that the letter of 16 February 2018 from Northwest’s lawyers extending the time for satisfying the condition by six months was ineffective:
For the vendor to be entitled to utilize that clause the subdivision plan to lead to the titles being issued was required to be lodged by 31 March 2018, however as that survey plan was not lodged until 19 June 2018 (please see copy attached), the vendor did not meet the prerequisite to be able to extend sunset date.
The annexure to her letter records a lodgement with LINZ on 19 June 2018 of plan LT 522391 which was approved on 20 June 2018.
[27] Northwest’s lawyers answered that Northwest was able to extend time under cl 24.2 of the agreement for sale and purchase because it had already submitted the survey plan to LINZ for approval. It relied on LT 509469. In response Mr Ling’s lawyer said:
While a plan was lodged, it was not a plan that would deposit the titles. Clause 24 is dealing with the settlement date, and the issue of the title. Clause 24.2 is clear within that context that it is the “survey plan” which will lead to the issue of title that would enable the trigger for clause 24.2, not just any old plan being lodged. On the attached view, survey Plan LT 509469 is “not for deposit”.
Enclosed with the letter was a document from LINZ referring to LT 509459 with its status noted as “not for deposit”.
[28] The case for Mr Ling is that Northwest did not satisfy the condition for extending time under the proviso to cl 24.2, because it had not submitted the survey
plan for approval before 31 March 2019. While another survey plan, LT 522391, was submitted on 27 March 2018, that was after Northwest’s lawyers had given the notice on 16 February 2018 and could not be used to justify the extension of time. LT 509469, which had been approved as to survey on 1 November 2017, was not a qualifying survey plan under the proviso to cl 24.2 because it was not to be used for titles to deposit and was noted as “not for deposit”.
[29] On 11 September 2018, title for Lot 65 issued. That was inside the six months’ extension of time in the letter of 16 February. On 27 September 2018, Northwest’s lawyers advised Mr Ling’s new lawyer that title had issued and set the date for settlement as 11 October 2018. On 3 October, Northwest’s lawyers sent a settlement statement showing the amount payable on settlement. On 10 October, the lawyers confirmed that Northwest was ready, willing and able to settle. On 11 October 2018, Mr Ling’s lawyer maintained that the agreement had been lawfully terminated and there would be no settlement. Settlement did not take place.
[30] Northwest’s lawyers issued a settlement notice fixing the date for settlement and making time of the essence. Mr Ling still did not settle. Northwest did not repay the deposit.
[31] In November 2018 Mr Ling started a proceeding in the District Court at Auckland under CIV-2018-004-2163 seeking a return of the deposit he had paid to Northwest.
Discussion
[32] Clause 24.2 is a sunset clause. It sets a date by which Northwest is required to have issued title, failing which either party may cancel. Its purpose is to give a purchaser some certainty as to the issue of title, particularly as under cl 23.1 Northwest has given Mr Ling no warranty when the plan will deposit or when a transfer could be registered.
[33] The sunset date in clause 24.2 is only one deadline. Under s 125 of the Resource Management Act a subdivision consent lapses after 5 years unless the
consent is given effect to. In the case of a subdivision consent, effect is given when a survey plan for the subdivision is submitted to the territorial authority under s 223.5 Under s 224(h) the consent holder then has a further 3 years in which to deposit a survey plan, failing which it will lapse.6 The agreement was also subject to the condition implied under s 225(2)(b) of the Resource Management Act. Mr Ling could cancel the agreement after two years after resource consent was granted, or one year after the date of the agreement (whichever is later), if Northwest had not made reasonable progress towards submitting a survey plan to the territorial authority for approval, or had not deposited the survey plan within a reasonable time after the date of the territorial authority’s approval.
[34] The sunset date of 31 March 2018 in cl 24.2 is, however, subject to the proviso that Northwest may extend the time for title to issue by a further six months if it has submitted the survey plan for approval to LINZ. Obtaining LINZ approval as to survey need not be the final step before a survey plan deposits, but by giving notice under the proviso Northwest can give itself a further six months in which to complete all the other steps.
[35] Initially Mr Ling took the point that the LINZ records showed that LT 509469 had been recorded by LINZ as “not for deposit”. A plan marked “not for deposit” could not satisfy cl 24.2. Northwest’s reply evidence showed that the notation was added only on 19 June 2018, when Northwest’s surveyor submitted LT 522391 to replace it. Mr Ling no longer pursued this objection in the hearing.
[36] Instead it was submitted for Mr Ling that LT 522391 was the operative plan, because it was that plan which led to the issue of titles on 11 September 2018. LT 509469 did not lead to the issue of titles. It was no more than “a plan”; it was not the plan. For Mr Ling, it was accepted that when a survey plan is submitted to LINZ for approval, it may be modified and varied to address requisitions of LINZ. But that would not assist Northwest here, because LT 509469 was replaced by a new plan, LT 522391.
5 Resource Management Act 1991, s 125(2).
6 Resource Management Act 1991, s 125(2).
[37] It was also submitted that if Northwest were to maintain that it intended to use LT 509469 for deposit, it would have to prove its subjective intentions, and that was a contestable matter on which the court should not give summary judgment. Any assertion by Northwest as to its intention was said to be arguable because of these factors:
(a)Northwest had not obtained the required consents to allow titles to issue before it submitted LT 509469 to LINZ on 30 October 2017;
(b)Northwest must have known that it did not have those consents before it submitted the plan, because it began the specific performance proceeding against the owners of 77 Nobilo Road only days later on 2 November 2017;
(c)In January 2018 it became aware that GSC Holdings Limited was obtaining its own survey, and that if GSC Holdings’ survey plan were to deposit first, Northwest would have to submit a new plan;
(d)The proceeding against the owners of 77 Nobilo Road was not heard until 23 February 2018, and further submissions were filed after that date; and
(e)GSC Holdings Limited deposited its plan on 8 March 2018 and Northwest was aware of that on that date.
[38] There is a time question. Mr Ling’s case is that the submission of LT 522391 to LINZ meant that Northwest cannot rely on having submitted LT 509459 under the proviso. That would mean that even if LT 509459 otherwise met the requirements under the proviso to cl 24.2, it could not count because it had been displaced by the lodgement of the later plan. That argument means that what is initially a survey plan is disqualified later because another plan has been submitted for approval. The extension would be valid at the start but would not count later. It is an unwieldy interpretation to provide that the validity of an extension can flicker, sometimes on, sometimes off. That would create uncertainty when it is important that both parties
understand what their position is. The better interpretation is that the time for deciding whether there has been an extension under the proviso is when Northwest exercises the power and not later when circumstances have changed.
[39] When Northwest gave its notice extending time on 16 February, both parties could establish then whether the condition for extension of time had been satisfied. Similarly, Mr Ling would need to know on 1 April 2018 whether to give notice of cancellation because title had not issued by 31 March 2018. He was able to find out. He could have asked Northwest, or his lawyer could have made independent enquiries of LINZ (just as his new lawyer did in September).
[40] So the inquiry is whether the survey plan had been submitted to LINZ for approval as at 16 February 2018, the date of the extension. By then Northwest had submitted LT 509459 to LINZ and had obtained its approval. The plan was not, however, ready for deposit because other matters needed to be satisfied. The owners of 77 Nobilo Road had still to give their consent, and the deposit of titles could also be affected by GSC Holdings’ subdivision next door. But lodging the survey plan with LINZ for approval was not the final step before deposit. After all, the purpose of the extension was to give more time to complete other steps.
[41] The need for the owners of 77 Nobilo Road to give their consent before the survey plan could deposit cannot alter the effect of the proviso to cl 24.2. To say that it did would entail adding a further term to the proviso. The proviso does not expressly require that other consents for the survey plan be obtained before the extension power is exercised. There is no basis for implying such a term. It would not pass the five- point test in BP Refinery (Westernport) Pty Ltd v Shire of Hastings.7 As the purpose of the proviso is to give more time to take other steps, it would not be right to imply a term that some of those steps must be taken before time can be extended. The same result is reached if the “construction” approach to implied terms is taken.8
7 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 16 ALR 363 (PC) at 376: “…for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that it “goes without saying”; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.”
8 As under Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10, [2009] 1 WLR 1988.
[42] As to GSC Holdings Limited, Northwest had found out in January 2018 that GSC Holdings Limited was planning to deposit its plan without obtaining the consent of the owners of 77 Nobilo Road, and that could affect the deposit of LT 509469. The fact that the deposit of a plan for neighbouring land may require consequential amendments to Northwest’s survey plan does not by itself prevent Northwest relying on survey plan LT 509469 having been lodged with LINZ for approval. To say that a plan which has been approved as to survey does not qualify under the proviso if it needs to be amended because of a change of circumstances after the approval requires reading extra words into cl 24.2. It is always possible that changes in events (foreseeable or not) may require changes to a plan which has been approved as to survey. That does not mean that restrictions should be read into the proviso to cl 24.2 to prevent the survey plan being used if it is possible that it will change because of changes of circumstances. It would be difficult to work out how to frame any such implied term, and I see no reason for implying such a term. It is not necessary to give business efficacy to the agreement – it is effective without the term; it is not so obvious as to go without saying; and it is not capable of clear expression.
[43] For Mr Ling, it was submitted that LT 509459 was no more than “a survey plan”, whereas under the proviso to cl 24.2 it had to be “the survey plan”. “The” is to be read as referring to the plan to be deposited, and anything else was no more than “a survey plan”. The submission requires “the” to carry too much. The agreement for sale and purchase clearly provides that land will be subdivided into smaller lots and certificates of title for the new subdivided lots will issue. In that process a survey plan will be required. “The” used before “survey plan” does no more than refer to the survey plan for that subdivision. That can also be seen in cl 23.1:
The vendor gives no warranty to the purchaser as to when the plan will be deposited …
The plan must be one that is capable of being used for deposit for the subdivision in the agreement (subject to requisitions by LINZ for approval as to survey), but the plan cannot be counted out because changes may be required because of changes of circumstances.
[44] Mr Ling’s argument also distinguishes between LT 509469 and LT 522391. While he accepts that changes may be made to LT 509469, he says that LT 522391 was something else. Certainly, Northwest’s surveyor decided to lodge a fresh survey plan to replace LT 509459 to take account of the changes arising from the deposit of the GSC Holdings Limited survey plan. But so far as this subdivision was concerned, the essentials of the survey plan remained the same, while making changes to the parts showing the periphery of the land to be subdivided to take account of changes to the cadastre on the deposit of GSC Holdings Limited plan. Mr Ling’s argument puts form ahead of substance. While a new plan number was given and LT 522391 replaced LT 509469, they remained basically the same plan.
[45] It is not necessary to deal with Mr Ling’s argument that Northwest’s intention to use LT 509459 for deposit is contestable. Northwest said that its case did not rely on findings as to its intention. It needed only to prove that it had lodged the survey plan for approval. An inquiry as to its subjective intentions was not required. I agree that the matter is to be assessed objectively by what Northwest did, not what it intended.
Outcome
[46] In summary, LT 509459 was the survey plan under the proviso. When Northwest’s lawyers gave notice extending time under the proviso to cl 24.2, Northwest had already submitted the survey plan for approval to LINZ. It was entitled to extend time under cl 24.2. The title issued within the extended time, that is, by 30 September 2018. Mr Ling was not entitled to cancel on the ground that title had not issued when he gave his notice of cancellation on 6 September 2018. Northwest has accordingly shown to the summary judgment standard that the agreement for sale and purchase has not been cancelled and remains enforceable.
[47] Mr Ling has not raised any other matters that count against enforcement of the agreement for sale and purchase. It is accordingly appropriate to require him to perform the agreement. There will be an order accordingly. As discussed with counsel, I fix the date for settlement at 31 May 2019 to give Mr Ling time to raise finance, if he has not done so already.
[48] The parties may find the order for specific performance in Great Northern Land Co Ltd v Commercial Capital & Equities Ltd of assistance in drafting the orders.9 As I held in Arranmore Developments Ltd v Zeeland Developments Ltd, the orders may include this:10
After the date fixed for settlement in this order, if the plaintiff shall give the defendant a written notice of its intention to cancel an agreement within 12 working days and further gives a notice of cancellation on the expiry of the 12 working days, the parties shall not be required to comply with those parts of this order relating to that agreement, unless the defendant files an application in Court within the 12 working days of receiving the first notice and the application seeks an order declaring that the plaintiff is not entitled to cancel that agreement.
[49] I reserve leave to the parties to apply for further directions. I have a chambers list on Friday 17 May 2019 at 2.15 pm. If either party requests, this case can be called in that list to deal with any outstanding matters.
[50] Mr Ling is to pay Northwest Developments Limited the costs of this proceeding. If counsel cannot agree costs, memoranda may be filed.
……………………………….
Associate Judge R M Bell
9 Great Northern Land Co Ltd v Commercial Capital & Equities Ltd HC Auckland CIV-2009-404- 7529 (no formal judgment given). See also Arranmore Developments Ltd v Zeeland Developments Ltd HC Auckland CIV-2009-404-4342, 19 May 2010.
10 Arranmore Developments Ltd v Zeeland Developments Ltd HC Auckland CIV-2009-404-4342, 15 June 2010 at [27].
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