Park Lane Estates Limited v Kim - [2014] NZHC 782

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000066 [2014] NZHC 782

IN THE MATTER
of Caveat No 9595321.1 (Canterbury

Registry)

BETWEEN

PARK LANE ESTATES LIMITED Applicant

AND

SUNG-HYUN KIM and TAE-HAN KIM and GAE JA LEE and SANG MI HONG Respondents

Hearing:
2 April 2014

Additional evidence: 7 April 2014 and 11 April 2014
Additional submissions: 11 April 2014

Appearances:

D M Lester for Applicant
T A Hwang for Respondents

Judgment:

15 April 2014

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
as to caveat lapsing

PARK LANE ESTATES LIMITED v SUNG-HYUN KIM and TAE-HAN KIM and GAE JA LEE and SANG MI HONG [2014] NZHC 782 [15 April 2014]

Introduction

[1] The applicant (Park Lane) caveated two properties (the Owners’ properties):

(a) A property (Lot 6) owned by the first and second named respondents;

and

(b) A property (Lot 7) owned by the third and fourth named respondents. I will refer to the respondents as “the Owners”.

Park Lane’s caveat

[2] In its caveat, Park Lane set out the relevant Identifiers of Lots 6 and 7. Under

the heading “Estate or Interest claimed” it then asserted:

An agreement to mortgage the land dated 19 March 2012 between Park Lane Estates Limited as Mortgagee and the registered proprietors … as Mortgagors.

Background to the caveat

[3] Lots 6 and 7 were part of a group of neighbouring lots at Rolleston which were the subject of planned subdivisions. Park Lane also owned two properties (Lots 9 and 10) and was involved in the subdivision.

[4] In 2011, the various properties in the area were rezoned to “Living Z” through the local authority’s plan change process. A company, Tay No.1 Limited, (Tay) negotiated with a number of owners’ contracts whereby all those owners would engage Tay to achieve various matters relating to subdivision.

[5] On 19 March 2012 Tay entered into a contract with the Owners for the management of subdivision steps on their behalf (the contract). The contract recognised that the cost of the construction of a main trunk sewer would be initially met by the owners of other properties in the area of the project, with the Owners to then meet their pro rata share of those costs. I will return at [10] – [18] to more detailed provisions of the contract.

[6] Robin Schulz provided the evidence on behalf of Park Lane. He deposed that Park Lane incurred all the expenditure anticipated under the contract. He refers to steps taken in completing of obligations under the contract. He says that work was undertaken for the benefit of the Owners of Lots 6 and 7 with their full knowledge of the work. He exhibits an invoice for rezoning work, rendered pursuant to clause 2.5 of the contract. That invoice was met by the Owners in June 2012. He exhibits a further invoice for $43,222.31, rendered to the Owners by Park Lane on 12 July
2012. The Owners have not met this invoice.

[7] Mr Schulz deposes that Park Lane lodged a…

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.

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Details

Case: [2014] NZHC 782
Decision Date: 15 April 2014

CaseChat Overview and Summary

Park Lane Estates Limited sought to sustain a caveat over two properties owned by the respondents. The respondents contended that Park Lane's caveat should be removed because it did not sufficiently describe how the interest claimed was derived. Park Lane argued that its interest was reasonably arguable, either as a result of an assignment from another party, or by virtue of clause 3.3 of the contract. The court found that the caveat did not sufficiently describe how the interest was derived, and therefore dismissed the application to sustain the caveat. The court also found that there were arguable grounds that the contract had not been properly cancelled, but declined to make a determination on this issue. The court ordered that the caveat lapse and that Park Lane pay the respondents' costs on a 2B basis.

Orders