Shaw v Dixon Homes Limited - [2023] NZHC 3395

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-419-031

[2023] NZHC 3395

BETWEEN
MARGARET EVELYN SHAW and MURRAY NELSON SHAW

Plaintiff

AND

DIXON HOMES LIMITED

Defendant

Hearing: 27 November 2023

Counsel:

No appearance for the Applicants M Talbot for the Respondent

Judgment:

28 November 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 28 November 2023 at 11 am.
Pursuant to Rule 11.5 of the High Court Rules.

…………………..
Registrar/Deputy Registrar

Solicitors/Counsel
Braun Bond and Lomas, Hamilton Copy to M N Shaw

SHAW v DIXON HOMES LIMITED [2023] NZHC 3395 [28 November 2023]

Introduction

[1] In this proceeding, the applicants, Mr and Mrs Shaw, were successful in obtaining an order under s 143 of the Land Transfer Act 2017 (the Act) sustaining a caveat. The caveat, 10850077.1, was lodged by Mr and Mrs Shaw against Record of Title 846822 (the property), owned by the respondent, Dixon Homes Ltd.

[2] The order sustaining the caveat was granted by Associate Judge Andrew in his judgment dated 1 June 2022, on the following condition:1

…pending the determination of the substantive proceedings. The order is conditional on the Shaws continuing to take all reasonable steps to prosecute their substantive claims.

[3] Dixon Homes now applies for an order that the caveat be removed, which is in substance a final order that the caveat lapse under s 143(7) of the Act, on the ground that Mr and Mrs Shaw have not complied with the condition.

[4] Mr and Mrs Shaw filed written submissions opposing the application, but did not appear at the hearing. The written submissions amount to an unfounded attack on the jurisdiction of the Court.

Background

[5] The substantive proceeding, CIV 2022-419-126, was commenced by Mr and Mrs Shaw before Associate Judge Andrew’s judgment in this proceeding. The substantive proceeding was an application for specific performance of a deed of settlement between Mr and Mrs Shaw and Dixon Homes from 2017 (the 2017 deed). The background to the deed is set out in the judgment in this proceeding dated 1 June 2022.

[6] The 2017 deed provided for a land swap and specific performance in relation to a 2013 agreement for sale and purchase between the parties, transferring some of Mrs and Mrs Shaw’s land to Dixon Homes. The 2017 deed provided Mr and

1 Shaw v Dixon Homes [2022] NZHC 1271.

Mrs Shaw with an express right to caveat the property. The 2017 deed has been part performed.

[7] In this proceeding, Dixon Homes had argued that Mr and Mrs Shaw had repudiated the 2017 deed, claiming valid cancellation by Dixon Homes. Associate Judge Andrew held that it was arguable that the cancellation was invalid and the 2017 deed remained on foot.

[8] Associate Judge Andrew held that Mr and Mrs Shaw had established an ongoing beneficial interest in the property, and that Mr and Mrs Shaw had a right to maintain the caveat over the property…

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: [2023] NZHC 3395
Decision Date: 28 November 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Margaret Evelyn Shaw and Murray Nelson Shaw, collectively referred to as the Shaws, were involved in a legal dispute with Dixon Homes Limited. The Shaws had lodged a caveat against a property owned by Dixon Homes, which was sustained by an earlier order. Dixon Homes now seeks the removal of this caveat, arguing that the Shaws have not complied with the conditions set for sustaining the caveat. The Shaws did not appear at the hearing but filed written submissions opposing the application.

The central legal issues revolved around the conditions attached to the order sustaining the caveat and whether the Shaws had complied with these conditions. The conditions required the Shaws to take reasonable steps to prosecute their substantive claims, which involved an application for specific performance of a deed of settlement. The substantive proceeding was subsequently struck out due to the Shaws' failure to comply with timetable orders. Dixon Homes argued that this failure justified the removal of the caveat.

Associate Judge Brittain considered the implications of the substantive proceeding being struck out, which effectively altered the balance of convenience. Although the Shaws had an arguable case for a beneficial interest in the property, their failure to prosecute the substantive proceeding and comply with the conditions for sustaining the caveat led to the conclusion that the caveat should lapse. The judge noted that any future claims by the Shaws could be addressed through damages if they were successful in proving a breach of their legal rights.

The court ordered that the caveat lodged by the Shaws against the property should lapse. Dixon Homes was given the opportunity to make written submissions on costs by 4 December 2023, with the Shaws allowed to reply by 11 December 2023. The court would then make a final order on the costs based on the submissions provided.

Orders