IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2017-404-000936 [2017] NZHC 1891
BETWEEN NORTHWEST DEVELOPMENTS LTD
Plaintiff
AND
CHENG ZHANG, JIN KUK JUNG AND PILL SOON SO
Defendants
Hearing: 3 August 2017 Appearances:
M J Fisher and K J Ng for Plaintiff
R M Dillon, T A Hwang and W Buckham for DefendantsJudgment:
11 August 2017
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 11 August 2017 at 11.30 am
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Counsel/Solicitors:
M J Fisher, Barrister, Auckland
Queen City Law, Auckland
Northwest Developments Ltd v Zhang & Ors [2017] NZHC 1891 [11 August 2017]
Introduction
[1] For decision are two interlocutory applications. The plaintiff (“Northwest”) seeks for an interim injunction to prevent settlement of Jung’s sale of its land (except on conditions). The defendants (“Jung”) apply for the removal of Northwest’s caveat over Jung’s land.1
[2] To summarise, Northwest and Jung are respectively incoming and outgoing proprietors of two separate landholdings. Their land is part of a wider residential development, pursuit of which is recorded in a series of agreements between then current landowners. They agreed to facilitate provision of the development’s common shared infrastructure (including by easements over each other’s land), to pay their proportionate share of the cost of such infrastructure, and to require successors in title to be bound by the same terms.
[3] Neither Northwest (as successor in title to the vendor of its land) nor the successor in title to Jung (as vendor of its land) is recorded as party to such documents. When it appeared Jung was to sell its land to a third party without obtaining its execution of such documents, Northwest – which carried the bulk of the actual development works – lodged a caveat against Jung’s land to protect its easement rights, and sought interim relief to prevent Jung’s impending sale except in compliance with the agreements. Jung applied to remove the caveat, and opposes the interim relief.
Facts
[4] Northwest and Jung are each registered proprietors of neighbouring properties respectively at 81 and 77 Nobilo Road, Kumeu. These properties are part of a larger aggregation of properties known as the Huapai Triangle in Auckland’s
Rodney District.
1 Rule 19.2 of the High Court Rules requires applications under s 143 of the Land Transfer Act
1952 for removal of caveats to be made by originating application. Brewer J directed by minute of 15 June 2017: The interlocutory application under s 143 of the Land Transfer Act 1952 filed by the defendants is deemed to be an originating application filed under Part 19 of the High Court Rules.
[5] The Huapai Triangle is intended to comprise a Special Housing Area (“SHA”) under the Housing Accords and Special Housing Areas Act 2013. Huapai Triangle landowners at the time entered into the Huapai Triangle Agreement dated
25 November 2013 (the “HTA”). Under the HTA, the landowners would collaboratively seek a private plan change…
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- Northwest Developments Ltd v Zhang [2017] NZHC 1891
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- [2017] NZHC 1891
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CaseChat Overview and Summary
The court considered whether Northwest had a serious question to be determined at trial on its own application. Northwest argued that Jung’s anticipated conduct in settling the sale of its land to Sanlii, without either making its contribution to payable infrastructure costs, and/or securing Sanlii’s commitment to the obligations contained in the 5 Owners Agreement, would be in breach of the 5 Owners Agreement. The court held that there was a serious question to be tried as to the state and meaning of the Agreements controlling relationships between Northwest and Jung in relation to their Huapai Triangle landholdings. The court also considered whether Northwest can discharge its onus as challenged caveator, and whether the balance of convenience and overall interests of justice favoured granting the injunction. The court held that the balance of convenience favoured granting the injunction and leaving the caveat in place.
The court ordered that the defendants were restrained from settling the sale of any part of Jung’s land unless certain conditions were met, and the defendants’ application for an order that Northwest’s caveat be removed was refused. The court also ordered that the costs of the interlocutory applications were to be borne by the defendants.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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