Olo Ltd v KA No 3 Trustee Ltd

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-532 [2014] NZHC 1075

UNDER

Section 145A of the Land Transfer Act

1952

IN THE MATTER

of Caveat 9627106.1 North Auckland
Land Registration District

BETWEEN

OLO LIMITED Applicant

AND

KA NO. 3 TRUSTEE LIMITED Respondent

Hearing:	8 May 2014
Appearances:	B M Russell for applicant D J Chisholm QC for respondent
Judgment:	22 May 2014

JUDGMENT OF LANG J

[on application for order that caveat not lapse]

This judgment was delivered by me on 22 May 2014 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

OLO LTD v KA NO. 3 TRUSTEE LTD [2014] NZHC 1075 [22 May 2014]

[1]      This proceeding concerns a dispute between the owners of two adjoining properties  in  Matapana  Road  on  Waiheke  Island.    The  applicant,  Olo  Limited (“Olo”), is the owner of the property at 34 Matapana Road.  It wishes to demolish an existing dwelling and build a new dwelling on its property.  Because of the physical contours of its property, Olo cannot obtain vehicular access to the building site from Matapana Road.  It maintains, however, that it has acquired an equitable easement entitling it to gain vehicular access to the site through an adjoining property situated at 46A Matapana Road.  That property is owned by the respondent, KA No. 3 Trustee Limited (“KA 3”).

[2]      In order to protect its position, Olo has lodged a caveat over the property at

46A Matapana Road.   It has now filed an originating application seeking an order under s 145A of the Land Transfer Act 1952 that the caveat not lapse.

[3]      KA 3 opposes the application.   It accepts that Olo has a right to use its property  to  gain  vehicular  access  to  34  Matapana  Road  for  the  purpose  of demolishing  the  existing  dwelling  and  building  a  new  dwelling.    It  contends, however, that the right is a contractual licence and not an equitable easement.  It is common ground that a contractual licence would not be sufficient to provide Olo with an interest in KA 3’s land capable of supporting a caveat.   KA 3 therefore argues that Olo has no right to sustain its caveat.

Relevant principles

[4]      The principles to be applied in applications such as this are well established through decisions of the Court of Appeal in cases such as Sims v Lowe1 and Pacific Homes Ltd (in rec) v Consolidated Joineries Ltd.2

[5]      I propose to apply the following principles in reaching my decision:

1      Sims v Lowe [1988] 1 NZLR 656 (CA).

2      Pacific Homes Ltd (in rec) v Consolidated Joineries Ltd [1996] 2 NZLR 652 (CA).

(a)       The onus is on Olo to demonstrate that it holds an interest in KA 3’s

land that is sufficient to support the caveat.

(b)Olo  must  put  forward  a  reasonably  arguable  case  to  support  the interest that it claims.

(c)      An order for the removal of the caveat will only be made if it is clear that there was either…