Northwest Developments Ltd v Zhang - [2017] NZHC 1891

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 Defendants

Judgment:

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…

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 Northwest Developments Ltd v Zhang

Details

AGLC: Northwest Developments Ltd v Zhang [2017] NZHC 1891
Case: [2017] NZHC 1891
Decision Date: 11 August 2017

CaseChat Overview and Summary

Northwest Developments Ltd sought an interim injunction to prevent the settlement of Jung’s sale of its land except on certain conditions, and Jung applied for the removal of Northwest’s caveat over Jung’s land. The case revolves around a series of agreements between the current landowners of a residential development, which included the provision of common shared infrastructure and the reimbursement of costs incurred. Northwest and Jung were successors in title to the vendors of their respective lands, but neither Northwest nor Jung’s successor in title were recorded as parties to the agreements. Northwest 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 opposed the interim relief.

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