Queenstown Central Ltd v March Construction Ltd

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-105 [2016] NZHC 1884

BETWEEN

QUEENSTOWN CENTRAL LTD

Plaintiff

AND

MARCH CONSTRUCTION LTD Defendant

Hearing:

30 November, 1, 2 and 3 December 2015 (closing submissions

received 16 December 2015)

Appearances:

MR Crotty and AJ Nelder for the Plaintiff
AN Riches for the Defendant

Judgment:

15 August 2016

JUDGMENT OF NICHOLAS DAVIDSON J

QUEENSTOWN CENTRAL LTD v MARCH CONSTRUCTION LTD [2016] NZHC 1884 [15 August 2016]

INDEX

Para Heading

[1]

Introduction

[1] Hendo’s Hole
[4] The parties
[7] Background

[18]

Short chronology

[38]

Pleading

[47]

Is the Fill annexed to and/or part of the Land?

[48] March’s position
[49] QCL’s position
[50] The test in New Zealand
[76] The test to be applied and its application in this case
[77] The evidence of the physical form
[92] Resource Management Act considerations
[110] 2012 variation
[115] Is the Fill annexed to and/or part of the Land?

[126]

Is March liable in trespass?

[128] Did March purchase the Fill, or did it hold a security interest only?
[130] Fill Ownership Agreement
[136] Personal Property and Securities Register (PPSR)
[138] Other assertions of ownership by March
[153] Did March lose ownership of the Fill on transfer of title?
[158]

Do rights and obligations under the Fill Ownership Agreement survive

sale of the Land?

[171] Other dealings with the Fill and the Land
[193] The effect of the sale of Fill to Gateway, QLDC, and Transit
[196] The 2012 Resource Consent
[197]

Did QCL somehow get the benefit of the ‘value’ of the Fill when the

Land was sold?

[201]

Was the sale to Collins Rd Developments Ltd a sham? If not, what

effect does that have on March’s obligations, if any?

[225] Is March liable in trespass even if the sale to Collins Rd is upheld?
[229] Did March abandon the Fill so as to have no interest in it?
[234]

Were there dealings or representations between March and QCL

which estop March denying ownership of the Fill?

[236] An ‘engineered’ solution whereby the Fill remains on the Land?
[240] Consent to remove the Fill
[244] Ownership of the Fill, and trespass
[248] Mesne profits – the conceptual basis
[258] No loss alleged by QCL
[259] The period to which mesne profits should apply
[262] The polarised position of the parties
[263] Some core considerations
[270] Mr Smithies’ valuation approach
[286] Mr Smith’s valuation approach

[297]

Discussion

[315]

Closing comment

[317]

Disposition

Introduction

Hendo’s Hole

[1]      In 2006 a large volume of ground material (Fill) was excavated to leave a prominent landmark known as “Hendo’s Hole”, adjacent to the State Highway and Queenstown   Airport   at   Frankton,   the   burgeoning   development   area   near Queenstown.

[2]      The  Fill  was  carefully placed  on  the  adjacent  land  (the  Land).    It  was covered  in  topsoil  and  sown  in  grass.   A resource  consent  was  granted  by the Queenstown Lakes District Council (the Council) for the Fill to be “stored” in this way for…

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Details
Case
[2016] NZHC 1884
Decision Date

CaseChat Overview and Summary

Queenstown Central Ltd (QCL) sued March Construction Ltd (March) for trespass and mesne profits in respect of a large volume of excavated ground material (Fill) placed on the adjacent land (the Land) in 2006. QCL sought a declaration that March was liable to remove the Fill from the Land. The essential issue for the judgment was who now owns the Fill and bears the responsibility for removing it so that commercial development can proceed. The issue turned first on the status of the Fill at law, as to whether it had retained a separate identity as a chattel or had become part of the Land by the legal constructs of affixation or annexation. The court found that the Fill had not lost its separate identity as a chattel. The court held that March must remove the Fill and pay rent (mesne profits) for storage of the Fill from the time it became the landowner.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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