Robert v Foxton Equities Limited - [2013] NZHC 1209

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2013-454-170 [2013] NZHC 1209

BETWEEN WR ROBERT and Z ROBERT as trustees of the ROSS ROBERT FAMILY TRUST Applicants

ANDFOXTON EQUITIES LIMITED Respondent

Hearing: 16 May 2013

Appearances: R. Wilson - Counsel for Applicant
B.J. Burt and H.L. Quinlan - Counsel for Respondent

Judgment: 14 June 2013

JUDGMENT OF JUSTICE D.I. GENDALL

This judgment was delivered by me on 14 June 2013 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ..................................................................

Solicitors: Gavin White, Solicitor, PO Box 68, New Plymouth 4340
Chapman Tripp, Solicitors, PO Box 2206, Auckland 1140

WR ROBERT and Z ROBERT as trustees of the ROSS ROBERT FAMILY TRUST v FOXTON EQUITIES LIMITED [2013] NZHC 1209 [14 June 2013]

Introduction

[1] On 13 December 2012 the applicants registered caveat no 9270321.1 against titles to properties in Foxton owned by the respondent containing together 6776 square metres being Lot 1 on Deposited Plan 21371 and part Lot 3 on Deposited Plan 10547 (certificates of title identifiers WN870/17 and WN13C/790) (the caveated land). In the caveat, the applicants claim an interest over part of the land in those titles as purchasers under the Agreement for Sale of Purchase I note in [3] below. Around 28 February 2013, the respondent applied to the Registrar General of Land to lapse the caveat under s 145A of the Land Transfer Act 1952. In the application before me, the applicants now seek an order that the caveat not lapse.

[2] The respondents oppose this application essentially on the following grounds:

(a) The applicants do not have the requisite caveatable interest in the caveated land; and

(b)If the applicant does have a caveatable interest in the caveated land, under all the circumstances prevailing here the Court should exercise its discretion to remove the caveat.

Background

[3] The respondent owns a large block of commercial land in Foxton containing

7.3 hectares (the total site) of which the caveated land forms part. In 2008 the respondent tried to sell the total site as a whole, but after several unsuccessful attempts, decided to subdivide it. A draft plan was drawn up subdividing the total site into 15 lots. On 10 June 2010 the respondent and the applicants entered into an Agreement for Sale and Purchase (the ASP) of Lot 6, delineated on this draft plan (Lot 6) containing an area of approximately 3370 square metres including one substantial commercial building. The ASP provided for a price of $145,000.00 for this Lot 6 with a deposit of $14,500.00 to be paid when the ASP became unconditional. Lot 6 formed part of and straddled the boundaries of the existing titles WN870/17 and WN13C/790 which represented the caveated land. Clause

15(b) provided that the ASP was conditional upon Horowhenua District Council (the Council) approval of the proposed subdivision plan on conditions acceptable in all respects to the vendor by the 30th day of June 2010 (which date was later extended to
30 October…

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 Robert v Foxton Equities Limited

Details

AGLC: Robert v Foxton Equities Limited [2013] NZHC 1209
Case: [2013] NZHC 1209
Decision Date: 14 June 2013

CaseChat Overview and Summary

The case of Robert v Foxton Equities Limited [2013] NZHC 1209 involved a dispute over the validity of a caveat lodged by the applicants, WR Robert and Z Robert as trustees of the ROSS ROBERT FAMILY TRUST, against properties owned by Foxton Equities Limited. The applicants sought to sustain the caveat based on their claim of a purchaser's equity under an Agreement for Sale and Purchase (ASP) of certain lots within the properties. The respondent opposed the application, arguing that the ASP was validly terminated, thereby negating any caveatable interest held by the applicants.

The primary legal issue was whether the applicants had a reasonably arguable case that they had a caveatable interest in the property in question, which would justify the continued existence of their caveat. The Court considered whether the ASP was validly terminated and whether the applicants had a legitimate interest in maintaining the caveat. The Court also examined the respondent's argument that the caveat should be removed under its residual discretion, considering if damages could adequately compensate the applicants.

The Court concluded that the applicants had demonstrated a reasonably arguable case that they had a caveatable interest in the property as the condition in the ASP regarding the subdivision consent had been satisfied or waived. The Court found that the actions of the respondent, particularly the delay in communicating the unacceptability of the subdivision conditions and the conduct of the respondent's agent, created a confusing situation that favoured the applicants. The Court also determined that damages would not be an adequate substitute for a caveat due to the applicants' established relationship with the land and the potential difficulty in finding an alternative property. Consequently, the Court decided not to exercise its residual discretion to remove the caveat.

The Court ordered that the caveat would remain in place, subject to the applicants commencing specific performance proceedings within 15 working days and prosecuting those proceedings with reasonable expedition. The Court also reserved leave for the respondent to apply for the lapse of the caveat if a genuine agreement for the sale of the site was in place and obstructed by the caveat. Costs were awarded to the applicants.

Orders