Philpott v Noble Investments Ltd
[2012] NZHC 1431
•28 June 2012
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2010-409-002984 [2012] NZHC 1431
IN THE MATTER OF Caveats Numbers 8322656.1 and
8003770.1
BETWEEN SHAYNE PHILPOTT, NEW ZEALAND TRUSTEE SERVICES LIMITED, COLIN PETER STOKES, FAY EUNICE RICHARDSON, BURNSIDE TRUSTEES LIMITED AND GREGORY ROBERT SMITH
Applicants
ANDNOBLE INVESTMENTS LIMITED Respondent
Hearing: 9 May 2012
(Heard at Christchurch)
Appearances: E D Peers and K Cowan for Applicants
S M Dwight for Respondent
Judgment: 28 June 2012
JUDGMENT OF ASSOCIATE JUDGE OSBORNE [as to application for orders that caveats not lapse]
The application
[1] This proceeding concerns land in a subdivision undertaken by the respondent (“Noble”) at Yaldhurst Road, Christchurch, originally to be known as Noble Gardens but now Noble Village.
[2] By an agreement for sale and purchase entered into in 2002, the applicants
(whom I will refer to as “the caveators”) purchased the proposed Lot 9 (together
PHILPOTT V NOBLE INVESTMENTS LIMITED HC CHCH CIV-2010-409-002984 [28 June 2012]
with other interests in the proposed subdivision). Noble undertook by Further Term
of Sale 15 (“FT 15”) to provide full width roading and services. FT 15 provides:
15.In the event a further subdivision is approved and work undertaken for residential subdivision by the Vendor on the adjoining development then the Vendor undertakes to provide full width roading to L1A zoning standard at it’s [sic] cost, together with sewer, power, telephone, water and stormwater connection for this zone’s standard to Lot 9. This work is to be completed within TWO YEARS of residential zoning being granted or when development of the Vendors adjoining land is undertaken, whichever comes first.
[3] Noble proceeded with its subdivision. It entered into a contract with Apple
Fields Limited for Apple Fields to manage the development.
[4] Following delays in the completion of the development (including as it affected Lot 9), Noble and Apple Fields and the caveators entered into a settlement agreement (the 2008 agreement) whereby (amongst other provisions) Lot 9 was to be provided with further roading and sealed and a serviced right of way.
[5] On 12 December 2008, the caveators lodged a caveat to protect “a right of way easement”. (Although first in time, I will refer to this for convenience as “Caveat 2”). Caveat 2 is lodged over a parcel of land identified as Lot 19 in the original subdivision plans. Lot 19 is located to the south of Lot 9. Caveat 2 relies on the 2008 agreement.
[6] On 28 October 2009, the caveators lodged a further caveat (“Caveat 1”) over eight titles, being those relating to Lots 11 – 18. (I will refer to those for convenience as “the Eastern lots”).
[7] In December 2010 Noble initiated the caveat lapsing procedures under s
145A Land Transfer Act 1952.
[8] The caveators immediately made this application which was opposed by Noble. As a result of the Christchurch earthquakes and difficulties accessing records, it then suited the parties that the application not come on for hearing for some time. Negotiations occurred which did not resolve the application. It was then brought on for hearing again.
The subdivision planning and the 2002 agreement
[9] The 2002 agreement for sale and purchase indicates progress achieved by
Noble in subdivision approval and further subdivision to come.
[10] Noble’s initial subdivision was at the stage of a proposed subdivision of a rural-zoned 41.4920 ha property, awaiting full and final resource consent. The plan of proposed subdivision is Schedule 1 to this judgment. It provided for 22 lots. The caveators’ 2002 purchase involved an amalgamation of Lots 9, 19 and a one-tenth share in Lot 22. Lot 22 was defined as the “Access Lot”. It has a north-south leg from Yaldhurst Road in the north (“Lot 22 north-south”) before a western arm connects to Lot 9 and other lots (“Lot 22 east-west”).
[11] The amalgamated purchase by the caveators satisfied lot size requirements under the existing planning designations. The 2002 agreement incorporated an option in favour of Noble whereby Lot 19 would be transferred back to Noble once residential zoning had been achieved. (Noble subsequently exercised this option). The contractual arrangements envisaged that the caveators would ultimately be owners only of Lot 9 and of their one-tenth share in Lot 22, (with the interest in Lot
22 subject to a further arrangement.
[12] A Further Term of Sale of the 2002 agreement (“FT 14”) required Noble, following the completion of the initial subdivision, to use its best endeavours at its cost to obtain L1A zoning for Lot 9.
[13] By Special Condition of Sale 23 of the 2002 agreement, Noble was required to apply on behalf of the caveators and others for the vesting or dedication of Lot 22 (as the “Access Lot” including a “Road Widening Area”) in the local authority. In the event of vesting, the caveators undertook to transfer their interest in Lot 22 for
$1.
[14] Noble undertook to include a clause substantially the same as Special
Condition 23 in any sale of the other lots in the subdivision.
[15] The definition clause of the special conditions referred to the “Road Widening Area” as meaning any area of the property shown hatched on a road widening plan attached to the 2002 agreement. That Schedule as exhibited by Gregory Smith (one of the plaintiffs) was blank apart from containing the words “Road Widening Plan”.
[16] The document which Mr Smith exhibited as the 2002 agreement includes at its conclusion four plans in relation to Lots 4, 5, 6 and 7 which are entitled “Road Widening Area”. It is not explained in the evidence exactly how these pages relate to the various documents comprising the 2002 agreement. Equally it was not suggested by any witness that they do not form part of the 2002 agreement. Those pages, at least arguably, indicate that Noble undertook to provide for road widening over Lots 4, 5, 6 and 7 (that is to say immediately to the north of Lot 22 east-west).
[17] The 2002 agreement made provision also for what was referred to as the “Further Subdivision”. The further subdivision is first referred to in the 2002 agreement in FT 15 (above [2]).
[18] It is FT 15 in particular on which the caveators rely to support Caveat 1.
[19] The special conditions of sale identified the further subdivision anticipated by the parties. It was a subdivision for more intensive residential purposes. Noble undertook at its own cost to pursue on behalf of all Noble Village owners district plan changes and resource consents which would enable such further subdivision.
[20] Noble also undertook work to have the plan for the initial subdivision deposited. The plan was deposited (as DP 323203) on 12 August 2003.
[21] Noble progressed the further subdivision. Residential zoning was granted about 21 August 2006. The subdivision application (contemplated by FT 15) was approved by the Christchurch City Council about 25 May 2009. Noble has progressed work for a residential subdivision on the adjoining development.
The 2008 agreement
[22] In the meantime these parties, in 2008, when the further subdivision had yet to be approved, entered into negotiations. These negotiations produced the 8 August
2008 agreement.
[23] By August 2008 Noble had evolved its planning of the further subdivision to include what came to be called the “spine road”. The plans showing the spine road as part of a more intensive subdivision appears as Schedule 2 to this judgment. The spine road can be seen running roughly north to south from Yaldhurst Road. Along its most northern stretch it runs roughly parallel to Lot 22. Side roads run off to the east and to the west. One western side road is shown connecting with a (widened) Lot 22 east-west.
[24] In planning for the further subdivision, Noble had (as it was obliged to do by FT 14) co-operated with the caveators to include the caveators’ requirements for increased density zoning of their Lot 9. Noble’s planners (Cardno TCB) prepared a subdivision plan of Lot 9, incorporating a right of way running from the (Lot 22) northern access road into a subdivided Lot 9. As a term of the 2008 agreement, Noble undertook to use best endeavours to obtain resource consent for that increased density zoning (shown in Schedule 3 to this judgment). This undertaking was expressly without prejudice to the caveators’ rights under FT 14 and FT 15 of the
2002 agreement.
[25] The 2008 agreement (paragraph 2.5) incorporated a second right of way shown on the Cardno subdivision plan as “ROW Lots 287 – 290”. As is evident from Schedules 2 and 3, this was planned to be a right of way running more or less south to north, servicing four of the lots which the caveators proposed to subdivide from Lot 9. The right of way was to run off a western side road off the spine road. In terms of the lot numbers adopted in 2002, the right of way would run over Lot 19. Paragraph 2.5 of the 2008 agreement provides –
2.5Apple Fields Limited will use all reasonable endeavours to ... implement roading for the spine road and the roading and sealed and
serviced right of way required for and to Lot 9 at its expense and to use all reasonable endeavours to complete such as soon as possible.
[26] Note 3 to the Cardno plan states:
3. Easements are to be created over services where required.
[27] Another Cardno drawing of 2007 (subsequently approved as a consent plan by the Council in 2012) shows the right of way leading to the south-west section of Lot 9. The drawing contains a schedule of proposed easements (including right of way, right to drain stormwater and sewage, right to supply water, gas, telecommunications and electricity over the right of way). It carries the note that:
Easements are to be created over services where required.
Noble’s planning after 2008
[28] By 2009 Cardno had prepared drawings for further stages of the subdivision. Of relevance to the caveators were the following features of these drawings –
(a) Lot 22 north-south no longer has access directly on to Yaldhurst Road
– the access over Lot 22 is cut off approximately 140 m south of Yaldhurst Road, at which point access is by a side road running off the spine road.
(b)Adjacent to the remaining Lot 22 north-south access there are created two new lots (510 and 514) immediately to the east of Lot 22 which have the function of widening that access way.
(c) At the eastern end of Lot 22 east-west there is created a new lot, Lot
604, which is intended to be vested as a road connecting the spine road to Lot 22 east-west.
[29] Noble has put forward no specific proposals for the widening of Lot 22 east- west. In particular the road widening areas identified for Lots 4, 5, 6 and 7 on the subdivision plans included in the 2002 agreement (above [16]) have not been incorporated into any current Noble plans. Those lots are now in the ownership of
other parties. The areas shown as road widening strips have accordingly not been caveated by these caveators.
[30] For the purposes of the hearing, counsel provided a marked-up version of the overall staging of Noble Village as now intended to be finalised by Noble. The Court’s version of that plan is Schedule 4 to this judgment. The plan shows services being provided from both the north and south of Lot 9. Right of way access is shown over Lot 604 as effectively an eastern extension of Lot 22.
Progress and where matters now stand
[31] The Court has received a series of affidavits (including replies to replies) in which deponents have engaged in a debate as to what changes of plans and what delays of construction have occurred, and who is ultimately responsible for impasses.
[32] The way in which the evidence has developed has been to some extent understandable because of the time which passed between the caveators’ application (23 December 2010) and the parties bringing the case to a hearing. During that time further planning and development occurred. Affidavits described as “updating affidavits” were filed and the caveators filed a final “reply” affidavit one week before the hearing.
[33] This process has led to an unnecessary expansion and repetition of debated points. It has, in my view, led to a diversion from the core issues – whether the interests claimed in the caveats are indeed caveatable interests. Much evidence has instead been directed to the different question (not an issue for this proceeding) of whether Noble has physically constructed the works and provided the services required by the 2002 and 2008 contracts.
[34] This is not a proceeding for specific performance of contracts to construct roadways or provide other services. Yet much of the material in the affidavits from the outset identifies and debates grievances relating to Noble’s alleged failure to
provide the roading and services to Lot 9. The following example from Mr Smith’s
first affidavit is an example of much of what followed:
24.Noble and Apple Fields Limited have failed to implement the roading and sealed and serviced right of way for and to Lot 9. They have similarly failed to use “reasonable endeavours” to carry out this work.
[35] For reasons which follow, the exact location of roading or services actually constructed or installed by Noble does arguably have relevance to the present application. That said, Noble’s achievements or failures in “carrying out this work” to use Mr Smith’s expression, does not directly assist in determining whether the caveators indeed had caveatable interests.
The lapsing of caveats – the principles
[36] The principles applicable to the caveators’ application are these:
(a) The burden of establishing that the applicant has a reasonably arguable case for the interest claimed is upon the caveator;
(b)The caveator must show an entitlement to, or beneficial interest in, the estate referred to in the caveat by virtue of an unregistered agreement or an instrument or transmission, or of any trust expressed or implied: s 137 Land Transfer Act 1952;
(c) The summary procedure involved in an application of this nature is wholly unsuitable for the determination of disputed questions of fact – an order for removal of the caveat will not be made unless it is clear that the caveat cannot be maintained either because there was no valid ground for lodging it or that such valid ground as then existed no longer does so;
(d)When an applicant has discharged the burden upon the applicant, there remains a discretion as to whether to remove the caveat, which will be exercised cautiously;
(e) The Court has jurisdiction to impose conditions when making orders.
[37] Against this background, I turn to examine in more detail the two sets of caveats.
Caveat 1 - the caveators’ grievance
[38] Mr Smith provided the evidence for the caveators. [39] He invoked FT 15 of the 2002 agreement.
[40] He says of FT 15 that:
(a) he understood from FT 15 that the roading and services would be provided by Noble;
(b)for Noble to provide them, the roading and services needed to physically cross the caveated land from Yaldhurst Road and from services in the north;
(c) by FT 15, Noble undertook to provide residential infrastructure and service connections to Lot 9 within two years of residential zoning or development of Noble’s land; and
(d) thereby Lot 9 would have services to L1A zoning standard
(subsequently superseded by Living G residential zoning standard).
[41] The estate or interest claimed by the caveators in Caveat 1 is stated to be
“pursuant to an Agreement for Sale and Purchase dated 17 May 2002...”
[42] Further evidence from Mr Smith and from another caveator, Colin Stokes, involves allegations that Noble and/or Apple Fields made numerous representations to them relating to the development. The representations (not always attributed to a particular person or to a date) were said to include that –
(a) the roading and services under the 2002 agreement would be provided via the formation of Lot 22 as a legal road to the required width, to ultimately vest in the Council;
(b)(through Noble’s real estate agent) that the roading and services from Yaldhurst Road would occur via the development and formation of Lot 22 which Messrs Smith and Stokes understood would connect with Yaldhurst Road from the north; and
(c) (through Mr Kain, both prior to and after the 2008 agreement, repeatedly on behalf of Noble) that Lot 22 was required to be developed and formed in satisfaction of FT 15.
[43] Mr Smith says that what Noble has achieved and provided is limited to: (a) the grant of residential zoning around 21 August 2006; and
(b) the approval of the subdivision application by the Council around 25
May 2009.
[44] Mr Smith says that Noble failed to complete the work required under FT 15 to provide the roading and services to Lot 9 by either 21 August 2008 (two years in terms of the contractual term in FT 15) or subsequently.
Caveat 2 – the caveators’ grievance
[45] Mr Smith says that the particular provision of the 2008 agreement on which the caveators rely is paragraph 2.5 ((above [25]).
[46] The 2008 agreement was signed by Mr Kain “on behalf of Noble Investment Ltd and Apple Fields Ltd”. Apple Fields is expressly referred to in paragraph 2.5 but not elsewhere in the 2008 agreement. All other express references to the vendor/developer side in the 2008 agreement are to “NIL” (defined to refer to Noble Investments Ltd).
[47] Mr Smith says that Noble and Apple Fields have failed to implement the roading and sealed and serviced right of way for and to Lot 9 and have similarly failed to use reasonable endeavours to carry out this work.
[48] Caveat 2 identifies the estate or interest claimed as being –
Pursuant to a settlement agreement dated 8 August 2008 which included an agreement to create a Right of Way Easement within land whereby Nobel [sic] Investments Ltd as registered proprietors [sic] are grantors and the caveators are grantees.
Inadmissible evidence
[49] In some passages of evidence to which I have referred there are references to “understandings” held particularly by the caveators as to the contractual obligations. There are other references to “understandings” through the affidavits. I disregard such evidence. The two contracts fall to be considered on their terms. The understanding of a party to the contract does not inform the meaning of the contract.
[50] To the extent that passages in the evidence of the caveators may suggest that the “understanding” is derived from one or other of the alleged representations made by Noble or Apple Fields or others, it is unnecessary for the Court to consider whether that evidence might be admissible in relation to such an allegation of representation. The interest claimed in the caveats does not relate to representations. The interests claimed expressly relate to the two contracts.
[51] There is a further category of the evidence filed which is inadmissible. In the “reply” affidavit of Messrs Smith and Stokes filed on 2 May 2012 (one week before the hearing) the deponents exhibited a “statement signed by two of the original adjoining owners”. The statement dated 1 May 2012 is unsworn. I advised counsel at the commencement of the hearing that while the Court was prepared to read the remainder of the reply affidavit, the exhibit in question would not be read.
Caveat 1 – the interest claimed –application of the principles
Was there an agreement to grant an easement?
[52] The caveators’ case, as identified in their originating application, is that the roading and services which Noble agreed by FT 15 to provide necessarily required the registration of easements by Noble. In his submissions for the caveators, Mr Peers characterised FT 15 as constituting either an implied grant of easement or an equitable easement over the caveated land.
[53] Noble, in opposition, asserts that Noble did not agree to grant an easement in respect of the roading and services and that such an obligation cannot be implied.
[54] For Noble, Ms Dwight invited the Court to draw and apply a distinction between an easement (an interest binding the guarantor’s successors in title) and a contractual licence. Ms Dwight invited the Court to apply the decision in Read v Read.1 She noted that in Read an arrangement for access by a track across the defendant’s land to the plaintiff’s land was found to be a licence rather than an equitable easement.
[55] I find more pertinent the discussion in McMorland on Easement, Covenants and Licences2 where it is noted:
Other easements may be created by implied grant or reservation in cases of necessity or where it can be shown that the alleged easement was in the common intention of the parties.
[56] In explanation of the distinction between easements and licences, Professor
McMorland states:3
But even if there is consideration, there might still in some circumstances be doubt whether there is an easement or a licence, a doubt which can be resolved only by reference to the intention of the parties. Unless there are strong indications that the right was intended to be personal to the grantee, it will probably be construed as an equitable easement.
1 Read v Read (1999) 4 NZ ConvC 193,077.
2 D W McMorland on Easements, Covenants and Licences (LexisNexis, Wellington, 2010) at
[2.3.2a]).
3 At [1.3.3].
[57] Professor McMorland then refers to a number of authorities for this proposition, including McDonald v Peddle.4 In that case Read J found the contract in question to create an equitable easement and not a personal right or mere licence. The particular provision read:
The grantors hereby grant to the grantee, and the grantee hereby accepts the right, to lay down a tram-line through the Motu No 9 Block for the purpose of transporting logs and timber.
[58] Read J adopted5 the test from the then current edition of Gale on Easements,6 as approved by the Court of Appeal in Wellington City Corporation v Public Trustee,7 as follows:
In all such cases the question would appear (without regarding the particular form of words used) to be—(i.) Does an intention appear to confer a right to affect the land of the grantor or covenantor? (ii.) Is this right one of those as to which, either from decided cases or by analogy, it can be said it is a right capable of being made the subject of a grant as an easement? If these two questions be answered in the affirmative an easement has been created, and the grantee and his assigns have the right as against the grantor or his assignees, without reference to any question as to the burden of covenants running with the land so as to bind an assignee. The document in question complies with both these conditions, for it purports to grant a right of way over the land of the grantor, which is the commonest form of easement, and which affects the land of the grantor. Although thus purporting to grant an easement, it would not, at common law, have the effect of constituting an easement unless it complied with the following conditions: (i) It must be created by deed; (ii) it must be appurtenant to a dominant tenement; (iii) it must be of a kind recognized by law. I have already pointed out that, as regards this third condition, the rights purported to be granted are the commonest form of easement—a right of way—and long recognized as a fitting subject of an easement. As regards the second condition, it is doubtful whether it can be said to be appurtenant to Smith's land; but it is unnecessary to consider that question, as this condition of the common law has, in New Zealand, been superseded by the statutory provision of s 13 of the Property Law Act, 1908: “An easement over land may be created without such easement being attached or appurtenant to other land, and such easement shall run with and bind the land over which it is created, and all persons claiming title to such land by, through, or under the person creating the easement; and the easement so created shall be to all intents and purposes an incorporeal hereditament, and shall be assignable accordingly.”
4 McDonald v Peddle (1923) 42 NZLR 987, affirmed [1924] NZLR 717 (CA), affirmed (1925) NZPCC 138.
5 At 990 – 991.
6 Gale on Easements 9th ed, 51.
7 Wellington City Corporation v Public Trustee [1921] NZLR 1086, 1096.
[59] Professor McMorland also footnotes in this context the decision in Hart v Mitchell,8 a decision relied on by Mr Peers in his submissions. Mr Peers cites Hart v Mitchell as a recent example of the likelihood that a grant will be construed as an equitable easement in cases of the present kind. Hart v Mitchell recognises that:
(a) a right of way, as the subject matter of an agreement, represents the classic subject matter for the grant of an easement;9
(b)the absence of express words describing a formal obligation to grant a registered right of way easement is not definitive;10 and
(c) the key issue is as to the parties’ intentions (objectively construed).
[60] Returning to the facts of this case, it is strongly arguable that as a matter both of common sense and of commercial necessity that the parties must have intended that Noble was making to the caveators a grant which would bind both Noble and its successors in title. This was, in 2002, a rural subdivision with some prospect of becoming an urban subdivision. The caveators were purchasing for $300,000 a rural block of land a substantial distance from Yaldhurst Road as the land’s (then) only road access. The rights of way involved in both the 2002 and 2008 agreements are the classic subject matter for the grant of an easement. The right to have assured access for services is closely similar.
[61] In reaching this conclusion I have not disregarded evidence given by Mr Kain that Noble would have refused to grant an easement over its land in relation to any of the obligations arising under the 2008 agreement because any such easement would have hindered the development. Ms Dwight referred to evidence in a subsequent affidavit filed by Mr Kain in which he deposes that the caveats have impeded funding for the development.
[62] Such evidence cannot be conclusive in the context of a jurisdiction based on arguability. In relation to this particular land in its location and the express
8 Hart v Mitchell (2006) 7 NZCPR 588.
9 At [48].
10 At [46]-[48].
contractual reference to a right of way, the caveators’ arguable case flows largely from the contractual documents themselves. Mr Kain’s evidence might be based on objective considerations of commercial reality. This would need more exploration at a trial before a safe decision could be reached, on that ground, to construe the agreement to grant a right of way and a right to other services as not involving the creation of an equitable easement.
Was Noble the grantor of an interest?
[63] Noble in its opposition has denied that it was the grantor of any interest under paragraph 2.5 of the August 2008 agreement. (It says that Apple Fields was the relevant party in terms of the August 2008 obligation). This issue does not arise in relation to the 2002 agreement, in which the contracting party is expressly Noble.
Is the easement claimed sufficiently defined?
[64] For Noble, Mr Paulsen submitted that the easement claimed in relation to the
2002 agreement was insufficiently defined to be capable of registration as an easement.
[65] Ms Dwight referred to the requirement as stated by Potter J in Read v Read:11
The easement must also be sufficiently defined as to location, width, start and finish.
[66] To similar effect is the commentary in McMorland on Easement, Covenants and Licences:12
The grant of a right of way normally defines the width and location of the way with precision, and should at least state the point of departure and the point of arrival of the way.
[67] Ms Dwight referred also to Philpott v NZI Bank Ltd13 as illustrating the principle that an interest by way of easement must be in relation to specific land.
11 At 193,081.
12 McMorland on Easement, Covenants and Licences at [4.1.1].
13 Philpott v NZI Bank Ltd (1989) 1 NZ ConvC 190,246.
The High Court in that case had dismissed an application to remove caveats. The Court of Appeal unanimously allowed the appeal upon the basis that the registered proprietor had shown that the caveats were patently unmaintainable. The respondent bank, to support its caveats, relied on particular conditions in its banking terms. One clause provided that the customer would, immediately on request, provide the bank with such alternative or additional security for the obligations of the customer as the bank might require. The Court found that the plain scheme of the contract was that alternative or additional securities referred to in that clause would not be given nor would any obligation to provide them arise until there had been a request and a requirement by the bank pursuant to the terms of that clause. Until then the customer was free to deal with the properties without any obligation in respect of them. No charge by way of security or any other interest was created in favour of the bank. Central to the scheme of the banking provision was that the parties were not agreeing to confer on the bank any present interest in any particular property.
[68] Ms Dwight submitted that Philpott v NZI Bank is applicable in the present case. She observes that the 2002 contract does not stipulate that the roading and services are to be provided “over a specified piece of land”. In support of the uncertainty of the situation, Ms Dwight notes a transition in Mr Smith’s evidence (for the caveators). Mr Smith, in his first affidavit, talks of the roading and services having to physically cross the caveated land “probably from Yaldhurst Road in the north”, whereas in a later affidavit Mr Smith states more categorically “Noble’s obligation under the 17 May 2002 Agreement is to provide roading and services from Yaldhurst Road to Lot 9”. (Ms Dwight might have added that, in their last affidavit, Messrs Smith and Stokes added that Noble’s real estate agent had clearly and unequivocally represented that the roading and services would be provided “via the formation of Lot 22 as legal road”. This later evidence is in its terms a reference to alleged representations rather than to something expressly or impliedly stated in the 2002 agreement itself.
[69] The facts of Philpott v NZI Bank are distinguishable. There was in the present case an arguable contractual intention (i.e. on both sides) that Lot 22 running from Yaldhurst Road to and past Lot 9 would form (with widening) the full width roading and route of services to Lot 9. It is also arguable the contract, construed
against its background, permitted Noble to route the right of way and services over another part or parts of its land so long as they connected with Lot 22. It may be ultimately found that the contract did not require Noble to follow the entire route of Lot 22. In any event, this proceeding is not concerned with any rights of the caveators over Lot 22 as there is no caveat affecting that Lot.
[70] In accordance with the arguable intention of the parties in the 2002 contract, Noble has now identified and delineated the routes by which it proposes to deliver roading and other services to Lot 9. Those routes include one which follows the spine road from Yaldhurst Road to Lot 22 east-west. Then they follow the spine road south before branching west with further roading and services supplied to Lot 9 at its southern boundary. Branching east from the spine road would be the sewer (as shown in Schedule 4). Noble’s description of these routes can be now identified readily on a plan, as was evidenced by counsels’ provision of such a marked-up plan for the purposes of this hearing (this version being Schedule 4).
[71] The evidence from Noble is that it anticipates that the roading (incorporating the services which run below the roading), will vest in the Council in the near future. Noble identifies a vesting date for some if not all relevant stages in August 2012.
[72] I have referred to plans drawn up by Cardno for the widening of Lot 22 north-south. I have also referred to open negotiations which occurred between the parties after the issuing of this proceeding.
[73] Noble offered a package whereby the widening of Lot 22 north-south would occur through the creation of lots (504 and 510) which would effect a widening of Lot 22. That package was not accepted by the caveators.
[74] Noble’s scheme for widening of Lot 22 north-south, over the Eastern lots as caveated, indicates a potential route for the right of way and services to Lot 9. If for any reason the spine road were not to vest in the Council, the widened Lot 22 north- south would represent a route identified by Noble and over which (in relation to Lots
504 and 510) Noble could grant an easement.
[75] Thus it is arguable that the routes to be taken for the caveators’ right of way and various services have been sufficiently defined to constitute a caveatable easement interest. It undoubtedly suited Noble in the early stages of the development to retain flexibility as to final routes of roads and services, while at the same time understating to the caveators that they would be provided with the development. This case is unlike NZI v Philpott where there was a further step yet to be taken before the caveators’ interest in the specific land arose.
The possibility that Lot 22 east-west will be widened or further formed with roading and other services
[76] Mr Peers made clear in his submissions that the lodging of the caveats flowed from the caveators’ belief that FT 15 entitled them to the widening and formation of Lot 22 into a full width road with the specified ancillary services. The caveators do not accept that Noble’s solution based on links from the spine road satisfies Noble’s obligations under the 2002 agreement.
[77] A central grievance of the caveators is that Noble has been proceeding with other stages of its subdivision development, including the proposed new high density lots within the Eastern lots which are caveated, to be sold off to third party purchasers in circumstances where roading or services to Lot 9 have not been physically completed.
[78] Neither Caveat 1 nor Caveat 2 relates to Lot 22 or to the four lots to the north (Lots 4, 5, 6 and 7) over which Lot 22 might be widened. The Court is not directly concerned in this application with rights which may be enforceable in relation to Lot
22 east-west or the rights and options which either party may have in that regard. Equally, it is not the role of the Court in relation to this caveat proceeding to uphold a caveat over other land in order to assist the caveators to enforce rights or to avoid being left with a purely damages claim in relation to Lot 22 and its widening.
[79] To the extent that there may need to be further definition of easements in relation to Lot 22, particularly if it does not vest in the Council as a road, that is in the hands of the owners of Lot 22 – Noble would have a role in that through its
control of the overall planning and the subdivision, but the control of easements lies with the owners (not Noble).
[80] Mr Peers, for the caveators, emphasised in relation to Lot 22 north-south that Caveat 1 was needed to ensure that Noble’s adjoining land to the east was available to allow the full width road and services (and any associated easement) to be formed. The same logic cannot be applied to Lot 22 east-west as that land is not in the ownership of Noble (and has not been caveated). Mr Peers therefore submitted that, in relation to Lot 22 east-west, Caveat 1 could be justified because until Noble completes the roading and services right up to Lot 9 (and not simply to the boundary of Lot 22) -
... we cannot know precisely over or under which part of the caveated land the roading and services are to be provided.
[81] I observe again the distinction between the creation of an easement (if the roading and services are not vested in the Council) on the one hand and the physical formation of that road and those services. These caveats cannot in some way govern how matters are to be dealt with over Lot 22 east-west, which is not the subject of a caveat. Noble has designated routes by which there will be a full-width roadway connecting to the eastern end of Lot 22 east-west, and running off the spine road and a full width Lot 22 north-south, leading to Lot 22 east-west. Those routes lie within the eastern lots, as caveated, and can be protected. Therefore so far as the formation and protection of an easement is concerned, the focus of the Court must be on land up to but not beyond the boundary of the caveated land. Any enforceable rights of the caveators in relation to the Lot 22 land leading up to the front of Lot 9 must be left for avenues of protection or recovery other than through a caveat.
Caveat 1 – conclusions
[82] In relation to Caveat 1, I conclude:
(a) The caveators have established a reasonably arguable case that by the
2002 agreement Noble granted the caveators an equitable easement.
(b)While the caveators arguably had an entitlement to have Noble provide the easement through a widened Lot 22, Noble also arguably retained a discretion to designate other of its land as the route for the equitable easement. It has now arguably designated two routes, namely a widened Lot 22 north-south and the spine road.
(c) The routes for the alternative easements lie over all titles caveated in
Caveat 1 other than Lot 11.
(d) If and when Noble finalises the spine road in conformity with
Cardno’s drawing no. PS-18 as approved on 25 May 2009 (Schedule
4), any equitable easement will expire.
(e) If and when the spine road (as shown in PS-18) vests in the Council, then the caveat in relation to Lots 12 and 18 will no longer be sustainable but the caveat in relation to Lots 13, 14, 15, 16 and 17 will be sustainable to the extent that proposed Lots 504 and 510 adjoining Lot 22 north-south represent land in relation to which the caveators have arguably caveatable interests.
Caveat 2 – the interest claimed – application of the principles
Was there an agreement to grant an easement?
[83] The caveators’ case, as identified in their originating application, is that the
2008 agreement gives them an interest in Lot 19 (to the south of Lot 9). They allege that the roading and sealed and serviced right of way referred to in the 2008 agreement requires the registration of an easement by Noble as grantor over parts of Lot 19.
[84] As already discussed in this judgment (above [55]–[59]), case law establishes that a right of way, as the subject matter of an agreement, represents the classic subject matter for the grant of an easement. The key issue is as to the parties’ intentions (objectively construed).
[85] The evidence indicates that by 2008 the caveators were very concerned about delays by Noble and Apple Fields in relation to the development. The caveators had plans for the subdivision of Lot 9 which Noble’s planners (Cardno) had incorporated into drawings for the project. Those plans – see Schedule 3 – involved a subdivision of Lot 9 which would require at least three of the subdivided sub-lots to be accessed via a right of way to the south (through Lot 19). The plans refer to this as a “right of way”. Notes to the plans indicate that easements would be created over services where required. In the context of this caveat proceeding, the caveators have a clearly arguable case that easements were intended over Lot 19.
Was Noble the grantor of an interest?
[86] Noble denies that it was the grantor of any interest under the 2008 agreement. In particular Noble asserts that the obligations under the 2008 agreement upon which the caveators rely are not the obligations of Noble. Accordingly any interest claimed by the caveators is not derived from the registered proprietor of the caveated land.
[87] Noble is the registered proprietor of the caveated land.
[88] The point raised by Noble turns on the fact that the relevant provision of the
2008 agreement begins with the words:
“Apple Fields Limited will use all reasonable endeavours to ensure ...”.
[89] In his initial affidavit filed in support of this application, Mr Smith dealt with the involvement of Apple Fields in the 2008 agreement in this way:
23.I understand Apple Fields is associated with Noble and that the companies have a common director, Gordon Ralph Stewart. I note that the 8 August 2008 Agreement was signed by “GTC Kain on behalf of Noble Investments Ltd & Apple Fields Ltd”. Mr Kain is a director of Apple Fields Limited and I have had dealings with Mr Kain on behalf of both Noble and Apple Fields Limited. I understand that while Noble owns the land at the Subdivision, the two companies have an arrangement whereby Apple Fields Limited manages and partially funds the development with Apple Fields Limited receiving approximately 95% of the profit.
[90] The initial evidence in opposition filed by Noble comprised affidavits from Mr Graham (a Cardno surveyor) and Mr G.T.C Kain (a director of Apple Fields). Mr Kain responded to Mr Smith’s paragraph 23 in this way:
15.As noted earlier, Applefields has a contract with Noble whereby it manages the development for which funding by way of development loans is secured over Noble’s land.
16. There is no common shareholding between Noble and Applefields.
They are not related companies.
17. In respect of the agreement contained in the letter dated 8 August
2008, the obligation to use reasonable endeavours to create the right of way for Lot 9 is the obligation of Applefields and not Noble. Whilst Noble intends that a right of way will be created and has planned for it, it was Applefields and not Noble that agreed to create the right of way.
18.Noble did not agree to grant an easement over its land in respect of any obligations arising out of the agreement of 8 August 2008 nor is that necessary to give effect to the 8 August 2008 agreement. If it had been suggested that an easement be granted it would have been refused by Noble as it would have hindered the development.
19.The letter dated 8 August 2008 was signed by me on behalf of Applefields only once I discussed the terms with directors of Applefields, Mr Gordon Stewart and Mr Justin Prain, and obtained authority to sign on behalf of Applefields. At that stage I was not a director of Applefields.
20.The terms of the agreement contained in the letter of 8 August 2008 were carefully negotiated and were prepared by the applicants then solicitors Duncan Cotterill.
[91] Mr Smith, in an affidavit of 11 February 2011, replied to Mr Kain’s evidence
in this way:
9. In relation to the obligations created under the 8 August 2008
Agreement, at paragraphs 15 to 17 of his affidavit Mr Kain suggests that it was Apple Fields and not Noble, who agreed to take steps to secure a right of way in favour of Lot 9. I firmly reject this. Mr Kain is the face of both entities, and has always held himself out as such. All of the applicants’ communications leading up to the 8
August 2008 Agreement were with Mr Kain, on behalf of Noble, and the applicants had always insisted that any further contractual arrangement would be with Noble. The adding of Applefields as party to the 8 August 2008 Agreement was on Mr Kain’s initiative, and was intended simply to give us an added assurance that Noble would comply with its obligations. Any commitment given by Applefields in relation to the Noble land was in our view given in Applefield’s capacity as agent for Noble. I refer to the email
exchanges annexed and marked as exhibit “A” to this affidavit as
illustrative of this point.
10.I do not understand how the obligation to provide a serviced right of way under the 8 August 2008 Agreement could be incurred separate to Noble. As noted, all of the lead-up negotiations had been with Mr Kain on behalf of Noble. Noble is the registered proprietor of the land subject to Caveat (instrument No 8003770.1). Only Noble could agree to register a right of way easement over its land. Up until now, everything Noble has said and done has been consistent with our view that it had agreed to provide us with a right of way easement under the 8 August 2008 Agreement. Annexed and marked as exhibit “B” is a copy of the approved subdivision plan prepared by Cardno for Noble Investments Limited. I have marked in yellow highlighting to show the proposed easement (marked “N”) in the schedule of proposed easements) over Noble’s land being the right of way referred to in the 8 August 2008 Agreement.
11. I further note that shortly after the 8 August 2008 Agreement, Mr Kain sought to purchase the right of way back from the applicants on behalf of Noble.
[92] In his submissions for the caveators, Mr Peers placed particular emphasis upon the fact that the 2008 agreement was signed off by Mr Kain as agent of Noble and of Apple Fields. Mr Peers submitted having regard to the fact that the right of way promised was to be constructed over Noble’s land, that it was implicit that Noble must have authorised and consented to that arrangement. He submitted that those facts alone are sufficient to sustain an arguable caveatable interest over Lot 19.
[93] Ms Dwight, for Noble, submitted that the 2008 agreement drew express and clear distinctions between the obligations of Noble and of Apple Fields, identifying the particular party accepting each obligation. It was Apple Fields which expressly accepted the obligation in relation to the right of way. Mr Kain’s signing the letter on behalf of both Noble and Apple Fields does not serve to make each party liable for obligations accepted by the other.
[94] Ms Dwight referred to passages in Mr Smith’s evidence (for instance paragraph 9 of Mr Smith’s reply affidavit – above [91]) in which Mr Smith refers to communications leading to the 2008 agreement. Ms Dwight noted that the 2008 agreement had been drafted by the caveators’ solicitors. It contained the introductory provision:
The following records the understanding met by our clients and replaces the earlier correspondence, including the alteration to clause 2.2 as set out in your facsimile of today’s date.
[95] On the basis of the observations of the Supreme Court in Vector Gas Limited v Bay of Plenty Energy Ltd,14 the legal position is that material prior to the contract should be allowed as background to the transaction only where it will assist in some way in establishing a shared contractual intention. Ms Dwight submitted that earlier correspondence cannot aid interpretation of an agreement when the parties have expressly provided that the agreement replaces earlier correspondence.
[96] Ms Dwight’s submission would carry greater force if the parties had not agreed at the beginning of the 2008 agreement that the letter “records the understanding met by our clients”. The caveators’ case is that the understanding was that Noble agreed to provide the right of way and other services. It is at least arguable that something may have gone wrong with the solicitors’ recording of an agreement (or “understanding”) which was reached previously. Given that the letter’s express purpose was to record that understanding, the possibility of rectification arises if the understanding has been incorrectly recorded.
[97] This is not a case where the amendments and finalisation of the contract occurred purely through exchange of drafted amendments. The 2008 (letter) agreement was expressly drafted to record the understanding reached through “further discussions” between the respective clients, after letters had been exchanged.
[98] This is not a trial. I do not have before me the background correspondence. Witnesses have not been examined and cross-examined as to exactly who agreed what with whom in order to arrive at the “understanding” referred to in the 2002 agreement.
[99] There has been no detailed exploration in the evidence of the extent to which and the capacities in which Apple Fields conducted and managed the development
for Noble. The express wording of the 2008 agreement, so far as it relates to the
14 Vector Gas Limited v Bay of Plenty Energy Ltd [2010] 2 NZLR 444.
right of way (with the express identification of Apple Fields and not Noble), is an argument against the caveators’ assertion of an interest granted by Noble. If found to be in the balance, the interpretation argument might be decided against the caveators on a contra proferentem approach. But there is a need to first test and balance the competing argument at trial, in the light of the witnesses’ evidence
[100] I find that the caveators have an arguable case as to Noble being bound to provide the right of way (and other services referred to in the 2008 agreement).
Is the easement claimed sufficiently defined?
[101] The parties to the 2008 agreement clearly understood the location of the right of way required for Lot 9 at the time the 2008 agreement was entered into. The Cardno drawings (Schedules 2 and 3) already existed as an integral part of the detailed subdivision planning within that area of the development. Ms Dwight did not suggest there was any uncertainty as to the location of the proposed right of way under the 2008 agreement.
Caveat 2 – conclusion
[102] I conclude –
(a) The caveators have a reasonably arguable case for the interest claimed in Caveat 2.
(b) The caveators arguably have an entitlement, enforceable against
Noble, to an equitable easement over Lot 19.
(c) Unlike the situation with Caveat 1, the caveators’ interests will not be adequately protected should the spine road vest in the Council because the route to be followed by the right of way and services over Lot 19 will not form part of the spine road.
The residual discretion to remove the caveats
[103] Ms Dwight submitted that, in the event the Court was satisfied that a caveatable interest exists in relation to either agreement, the Court should exercise its discretion not to sustain each caveat.
[104] Her submission was succinct and I repeat it verbatim:
64.Were it to be considered that the applicants have a caveatable interest then the respondent would seek the exercise of the discretion on the basis that the caveats will prevent the development from proceeding. If the caveats remain then Noble will not be able to complete precinct 1 (stages 1 and 3-8).
65.Noble has already offered and remains prepared to offer (without acknowledging that any caveatable interest exists or that the roading and services must be provided via Lot 22) that the Lot 9 caveat remains over the strip alongside Lot 22 but is released over the balance of the lots. That would address the matters raised by the applicants whilst allowing the development to proceed.
66.Services have been laid through Road 2 (Lot 604) up to the boundary of Lot 22. Road 2 is to vest along with the spine road in a few months’ time.
[105] The evidence on which Ms Dwight’s submission was based can be
summarised –
(a) Mr Kain, in an updating affidavit, referred under a heading “security issues” to difficulties which Noble had experienced, because of the caveats on the titles, with raising finance. He speaks of the caveats “almost certainly” causing considerable problems, possibly hindering progression of the development, and a financier being “disinclined to consider funding” while the caveats remain. The point, as Mr Kain explains it, appears to relate to the fact that financiers may not be able to see how sales can be settled and loans repaid. He refers also to buyers and builders being generally nervous about what will happen.
(b)Mr Graham (of Cardno) also speaks of difficulties. He says that it would be:
Both impracticable and economically prohibitive for Noble to create the right of way to Lot 9 without first creating the spine road and the residential lots adjacent to the spine road. The right of way to Lot 9 cannot be created until the spine road and the roads within stage 17 are vested with the CCC.
(c) While Noble is entitled in the exercise of the discretion to have difficulties taken into account, that has to be balanced against the risk that the caveators are deprived of rights which are ultimately found at trial to have existed, only to be left with damages claims. I must also take into account the fact that Mr Kain’s evidence speaks of difficulties, but not generally impossibilities. Mr Graham’s evidence suggests that there is no need to create any easement before the spine road vests in the Council. That said he does not appear to rule out an arrangement whereby, before an easement is created, it is protected by a means short of registration.
(d)Against this background I am satisfied that with appropriate conditions, particularly related to the vesting of the spine road in the Council, Noble will be armed with a Court order with which it can provide a reasonable measure of certainty to those with whom it deals, while at the same time protecting the caveators’ interests which came into being as long ago as 2002.
The route to be followed by services
[106] The 2002 agreement expressly provided for “sewer, power, telephone, water and stormwater connection”.
[107] The 2008 agreement referred more cryptically to “the roading and sealed and
serviced right of way required for and to Lot 9”.
[108] There is no suggestion (from Noble or otherwise) that the services referred to in the 2008 agreement are fewer than or different to the services referred to in the
2002 agreement.
[109] In his evidence filed in opposition, the surveyor (Mr Graham) provided some detail as to the route to be followed by the services referred to in FT 15 (in the 2002 agreement). Mr Graham did not provide a detailed plan showing the route to be followed by each service. For sewer and stormwater, he accepted that those were not yet installed but that if routed over Noble’s land they would only need to pass over Lots 16, 17, 18 and 19 to the south. He said:
(a) power was provided from overhead lines down Lot 22;
(b) telephone was provided (without specification as to its route); and
(c) water was reticulated along Lot 22 from Yaldhurst Road.
[110] In reply Mr Smith took issue with Mr Graham’s comments. Mr Smith deposed that the services referred to and provided as at February 2011 were supplied as part of the initial subdivision and to a rural standard only. Mr Smith said that they were not to the standard required for the servicing of Lot 9 following its subdivision. The emphasis in both Mr Graham’s and Mr Smith’s evidence was upon where services were physically routed (rather than where Noble was providing legal access).
[111] In April 2012 Mr Graham filed an updating affidavit, noting as follows:
(a) Sewers have now been laid along the spine road and (via Lot 604) to the boundary of Lot 22. The sewer line is to vest with the Council at the time of the deposit of Stages 1 and 3–8 in approximately August
2012. Sewer connection was also to be installed over Lots 18 and 19 to the south of Lot 9, to be completed by Autumn 2013;
(b)Power has already been provided to residential standard but, with difficulties in relation to the width of Lot 22, Noble now intends to provide the additional electrical services to Lot 9 by way of Stage 17 (completion expected Autumn 2013);
(c) Telephone as installed satisfies residential standards. Again with difficulties over Lot 22 Noble intends to provide additional phone services to Lot 9 by way of Stage 17 (completion expected Autumn
2013); and
(d)Water - supply to be upgraded, will occur when the Lot 22 upgrade occurs. Noble now proposes to provide additional water supply to Lot
9 by way of Stage 17 (expected completion Autumn 2013).
[112] Stormwater requirements had changed from the time of Mr Graham’s previous affidavit. Draining stormwater to the east over Lots 16, 17 and 18 is no longer possible. Noble intends to drain the stormwater over Lots 20 and 21 (that route is not guaranteed because there are unresolved issues as to the ownership of those lots, not at present owned by Noble). Mr Graham deposes that it is clear that stormwater cannot be drained from Lots 9 and 22 over the caveated lots.
[113] Messrs Smith and Stokes filed further reply evidence. They dealt briefly with the updating evidence from Mr Graham. Their evidence makes it clear that there is continuing disagreement on such basic matters as whether particular services physically reach particular points. They suggest that proposals made by Noble are simply promises yet to be performed. In relation to the alleged impossibility of taking stormwater south-east, they observe that unless and until Noble obtains rights over Lots 20 and 21 (to the west of Lot 9), the stormwater drainage will need to occur over lots owned by Noble within the caveated land. They doubt that Noble is prevented by Council requirements from draining stormwater to the south-east. They suspect that Noble’s focus for that land is on its subdivision to the highest possible density and economic gain.
[114] For the hearing, Ms Dwight provided to the Court a marked-up plan showing established lines for sewer, water supply, electricity and telephone (but not in relation to the unresolved stormwater issues). (The Court’s version of this plan is at Schedule 4). Those lines for services work their way out from the spine road to both the north of Lot 9 and the south of Lot 9 and to the south-east of the entire
development. I infer that the water supply, electricity and telephone then follow north along the spine road until they reach Yaldhurst Road.
[115] The routes shown by the lines are such as to indicate that:
(a) generally, until the spine road vests in the Council it is only the caveats which will protect the caveators’ interests in the routes to be taken by services;
(b)in relation to rights of way from the south of Lot 9, it is only the caveat in relation to Lot 19 which will protect the caveators’ arguable interest under the 2008 agreement; and
(c) until Noble designates its precise routing for stormwater away from Lot 9, the probability is that the stormwater will be routed (in terms of the land Noble owns at the moment) over Lots 16, 17, 18 or 19 or a combination thereof.
[116] I observe that if Noble gets itself to the point of being able to demonstrate that it has an assured route for the stormwater which will not pass over caveated lots, then (subject only to the caveats sustained over Lots 19 for the purposes of the right of way and other easements supply the south of Lot 9 and the easement required over Lots 16 and 17 for the widening of Lot 22 east-west) the Court’s order will lead to discharge of the relevant caveats.
[117] The two-year time limit for the work required to be completed under FT 15 which expired in August 2008 should be accepted by Noble as (at least in relation to the services to the north of Lot 9) a powerful reason to finalise without further delay all design and construction of services to Lot 9. Noble appears, since the 2002 agreement, to have had an intervening focus on the spine road as a route for services. It also had a focus on coming to grips with where it physically wants to construct its access ways and services. This appears to have been accompanied by some lack of clarity as to where Lot 9’s legally defined routes of access are to be defined. As matters stand a year and a half after this application was made, Noble has left the
Court with a less than clear understanding of the exact route which one of the services (stormwater) is to follow. It is arguable, in a caveat context, that Noble cannot take advantage of its failure to identify a clear, legally serviceable route for the stormwater easement. The possible route to the south-east (should Noble not obtain ownership of Lots 20 and 21) represents on the evidence at this hearing Noble’s most likely route for stormwater. Failing Noble’s demonstrably achieveable designation of another route, the caveators have an arguable interest over the south- east route.
Orders
[118] I order:
(a) Caveat instrument no. 8003770.1 (Caveat 2) shall not lapse. (b) Caveat instrument no. 8322656.1 (Caveat 1) shall not lapse.
(c) Leave is reserved to the parties to apply in relation to the following matters.
(d)It is a condition of the order numbered (b) above that Caveat instrument no. 8322656.1 shall lapse insofar as it affects Lot 11, Deposited Plan 323203, Identifier 440795, Canterbury Land Registration District.
(e) In the event and at the time that the “spine road” as shown on Schedules 2 and 3 to this judgment is vested in the Christchurch City Council both as a road and with the services that are to be provided off Yaldhurst Road running through it, and Noble Investments Limited has caused an easement for right of way and other services to be registered over Lots 504 and 510 (as they appear on Schedule 4 to this judgment) in favour of the registered proprietors of Lot 9 in Deposited Plan 323203, Identifier 440793 (of any subdivided lot thereof), then Noble Investments Limited may on three working days’ notice have
this proceeding brought on for the making of orders that the balance of land in Lots 12, 13, 14, 15 should lapse.
(f) In the event that Noble Investments Limited is in a position to demonstrate to the reasonable satisfaction of the caveators or the Court that a route for stormwater drainage from Lot 9 has been secured other than over the caveated property, then Noble Investments Limited has leave on three working days’ notice to apply to the Court for an order that the caveats lapse in relation to titles for land unaffected by the stormwater drainage (except to the extent that a caveat also protects interests other than in relation to stormwater drainage).
(g)The parties shall within fifteen working days of this Order meet to consult as to outcomes which will resolve all or some of the issues raised in this proceeding including but not limited to:
(i)On an assumption that the spine road and its side roads will vest in the Christchurch City Council, will the caveators accept such vesting as compliance with the 2002 agreement either in relation to right of way or services and, if so, to all or which?
(ii)Do the parties have any agreement on the widening of Lot 22 north-south to include either proposed Lots 504 and 510 or any other land?
(iii)Can the parties agree on the formalisation of the rights of the caveators in relation to the additional right of way referred to in the 8 August 2008 agreement?
(h)The application stands adjourned to 3 December 2012 for mention, but with leave to the parties on three working days notice to request an earlier date for mention, and with leave to apply for any further
orders or directions required to give effect to this order.
Associate Judge Osborne
Solicitors:
Buddle Findlay - Email: [email protected] / [email protected]
Cavell Leitch Pringle & Boyle - Email: [email protected]
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