JUDGMENT OF THE COURT

A The appeal is dismissed.
BThe High Court’s order staying the order for removal of the caveat made on 11 July 2007 is discharged.
CCosts of $6,000, together with usual disbursements (including the filing fee on the respondents’ application for leave to adduce further evidence), shall be paid by the appellant to the respondents.

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REASONS OF THE COURT
(Given by Heath J)
Introduction
[1]       Raiser Developments Ltd (Raiser) appeals against an order made by Associate Judge Faire, in the High Court at Auckland, on 11 July 2007. The Associate Judge directed that a caveat lodged by Raiser against a property owned by Trefoil Properties Ltd (Trefoil) be removed.
The background to the order
[2]       On 11 May 2005, Raiser entered into an unconditional agreement to buy a property at 117 Grafton Road, Auckland from Trefoil. The agreed purchase price was $8,190,000. A deposit of $400,000 was payable, with the balance of the purchase price to be paid in cash (as to $1,620,000) and vendor finance (secured by first mortgage over the property and other collateral security) of $6,500,000. Settlement was to be effected on 31 August 2005.
[3]       On or about the same day, Raiser entered into an unconditional agreement to acquire a business (known as the Grafton Oaks Hotel) from Grafton Oaks Motels (1999) Ltd (Grafton Oaks). That business is carried on from the Grafton Road property. The purchase price for the business was $330,000. That was to be funded out of the $6,500,000 to be left in as vendor finance on the acquisition of the property.
[4]       Raiser alleges that all documents relating to the vendor finance would contain such terms and conditions as were usually contained in documents of that type prepared by solicitors practising within the area regulated by the Auckland District Law Society. Raiser alleges “usual” terms were not incorporated; indeed, it alleges that “onerous and additional other terms” were.
[5]       Raiser declined to sign the documents in the form tendered to it. It served a settlement notice on 19 September 2005, providing 12 working days within which Trefoil and Grafton Oaks should settle. Trefoil and Grafton Oaks countered with their own settlement notice. On 22 September 2005 Trefoil and Grafton Oaks purported to cancel the respective agreements.
[6]       Raiser tendered the purchase price. However, settlement has not eventuated. To protect its interest, Raiser lodged a caveat against the Grafton Road property. Shortly afterwards, steps were taken to trigger the need for Raiser to seek an order that the caveat not lapse.
[7]       An application under s 145A of the Land Transfer Act 1952 (the Act) was filed in October 2005. In the accompanying Statement of Claim,…

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.

Continue reading Raiser Developments Ltd v Trefoil Properties Ltd

Details

AGLC: Raiser Developments Ltd v Trefoil Properties Ltd [2008] NZCA 73
Case: [2008] NZCA 73
Decision Date: 19 March 2008

CaseChat Overview and Summary

Raiser Developments Ltd sought to appeal an order made by Associate Judge Faire in the High Court at Auckland, directing that a caveat lodged by Raiser against a property owned by Trefoil Properties Ltd be removed. The appeal was dismissed by the Court of Appeal of New Zealand. The primary legal issues were whether the Associate Judge had jurisdiction to reconsider his original decision that the caveat not lapse and, if so, whether he had exercised his discretion correctly in ordering that the caveat be removed. The Court of Appeal held that the Associate Judge had jurisdiction to make a conditional order under s 145A of the Land Transfer Act 1952 and that he was entitled to reconsider the balance of convenience issue in light of a change in circumstances. In particular, the Court of Appeal found that Raiser's failure to comply with an order to provide security for costs and to comply with timetabling orders justified the Associate Judge's decision to remove the caveat. The appeal was dismissed, the stay pending appeal was discharged, and costs of $6,000, together with usual disbursements, were awarded to Trefoil and Grafton Oaks.

Orders