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Philpott v Noble Investments Ltd

Philpott v Noble Investments Ltd

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA274/2013
[2015] NZCA 342

BETWEEN	SHAYNE PHILPOTT, NEW ZEALAND TRUSTEE SERVICES LIMITED, COLIN PETER STOKES, FAY EUNICE RICHARDSON, BURNSIDE TRUSTEES LIMITED AND GREGORY ROBERT SMITH Appellants
AND	NOBLE INVESTMENTS LIMITED Respondent

Hearing:	3 June 2015
Court:	Ellen France P, Stevens and Winkelmann JJ
Counsel:	W J Palmer and S A Brookes for Appellants P B McMenamin for Respondent
Judgment:	30 July 2015 at 12.30 pm

JUDGMENT OF THE COURT

A The application for leave to adduce further evidence is granted.
BThe appeal is allowed.
CThe respondent’s cross-appeal is dismissed.
DThe Judge’s orders that caveat numbers 8322656.1 (caveat 1) and 8003770.1 (caveat 2) not lapse are confirmed.
EThe condition set out at [118](d) of the first High Court judgment that caveat 1 should lapse insofar as it affects Lot 11 is quashed.
FThe condition set out at [118](e) of the first High Court judgment reserving leave to the respondent to apply for lapse of the caveat if it met certain conditions, is quashed. We replace it with the condition that leave is reserved to the respondent to apply for an order that caveat 1 lapse. Such application may be brought on the grounds that the caveatable interest has been satisfied or will be satisfied on registration of documents.
GThe respondent must pay the appellants one set of costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Introduction

In 2002 the appellants bought part of a large piece of rural land, owned by the respondent, Noble Investments Limited (Noble). Noble planned to subdivide its land but in advance of the subdivision sold lots within it, including to the appellants. These sales occurred on the basis that the on-sold lots would be included within Noble’s scheme for the subdivision if it proceeded. As part of its agreement with the appellants in 2002 (the 2002 agreement), Noble undertook that if the subdivision went ahead it would provide roading and services to the appellants’ land in keeping with the subdivisional scheme.
Noble has gone ahead with the subdivision, although progress has been slow and intermittent. Disputes have arisen between Noble and the appellants, including a dispute as to the performance of Noble’s obligations to provide roading and services. The appellants lodged two caveats, the first (referred to as caveat 1) in reliance upon the obligations that Noble undertook to provide roading and services to the appellants’ land, and the second (caveat 2) in reliance upon a further agreement that the appellants say they reached with Noble to grant a right of way over land owned by Noble.
Noble challenged the appellants’ claim for caveatable interests in respect of both caveats 1 and 2. These challenges have been subject to two judgments by Associate Judge Osborne.[1] In the first, the Associate Judge found that the appellants had caveatable interests sufficient to sustain both caveats but made orders that caveat 1 should…

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: [2015] NZCA 342
Decision Date: 30 July 2015 at 12.30 pm

CaseChat Overview and Summary

The appeal was heard by the Court of Appeal of New Zealand, with Ellen France P, Stevens, and Winkelmann JJ presiding. The appellants, including Shayne Philpott, New Zealand Trustee Services Limited, Colin Peter Stokes, Fay Eunice Richardson, Burnside Trustees Limited, and Gregory Robert Smith, challenged a decision by the Associate Judge regarding two caveats lodged on land owned by the respondent, Noble Investments Limited. The appellants argued that the Associate Judge erred in finding that they had a reasonably arguable case for an interest in the land sufficient to sustain the caveats, and that the Associate Judge was wrong in imposing specific conditions upon his orders sustaining the caveats.

The court found that the appellants had a reasonably arguable case for a caveatable interest in the land, as the 2002 agreement between the parties included an obligation for Noble to provide roading and services to the appellants' land. This obligation was considered to be an implied grant of an easement. The court also found that the appellants had a reasonably arguable case for a caveatable interest based on a 2008 agreement that granted a right of way easement over Lot 19.

However, the court found that the Associate Judge erred in imposing specific conditions on the orders sustaining the caveats. Instead, the court imposed a condition that allows Noble to apply for an order that the caveat lapse if the caveatable interest has been satisfied or will be satisfied on registration of documents.

The appeal was allowed, the cross-appeal was dismissed, and the Judge's orders that caveat numbers 8322656.1 and 8003770.1 should not lapse were confirmed. The conditions set out at [118](d) and [118](e) of the first High Court judgment were quashed and replaced with a condition that allows Noble to apply for an order that caveat 1 lapse if the caveatable interest has been satisfied or will be satisfied on registration of documents. The respondent must pay the appellants one set of costs for a standard appeal on a band A basis and usual disbursements.

Orders