Shaw v Dixon Homes Limited - [2022] NZHC 1271

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-000031

[2022] NZHC 1271

UNDER Part 9 of the High Court Rules 2016 and Land Transfer Act 2017, s 143

IN THE MATTER OF

An application to sustain Caveat Instrument 10850077.1 lodged against Record of Title 846822

BETWEEN

MARGARET EVELYN SHAW and MURRAY NELSON SHAW

Applicants

AND

DIXON HOMES LIMITED

Respondent

Hearing: 12 May 2022

Appearances:

B A Vautier and J C Dawson for Applicants M D Talbot for Defendant

Judgment:

1 June 2022

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by Associate Judge Andrew on 1 June 2022 at 4.00 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar Date……………………………….

SHAW v DIXON HOMES LTD [2022] NZHC 1271 [1 June 2022]

Introduction

[1] These are caveat proceedings relating to a subdivision on Dixon Road, Hamilton.1 Both parties own land on Dixon Road. The respondent, Dixon Homes Ltd,2 is a property development company and the owner of the property at issue. The Shaws are adjacent landowners, and their land is not part of the DHL subdivision. It remains relatively undeveloped.

[2] The rights of the parties, including the right of the Shaws to a beneficial interest in the property, are governed by a deed of settlement entered into between them in 2017.3 That deed provided for a land swap and an order for specific performance in relation to a 2013 agreement for sale and purchase transferring some of the Shaw’s land to DHL.

[3] It is not in dispute that under the 2017 deed, the Shaws had an express right to caveat the Property. However, DHL says that the Shaws have repudiated the 2017 deed, resulting in DHL exercising a valid right of cancellation. DHL says that the Shaw’s beneficial interest in the land has ceased and the caveat cannot be maintained.

[4] The critical issue I must determine is whether the Shaws have established a reasonably arguable basis for concluding that their rights under the 2017 deed remain on foot; have the Shaws established that there was arguably no valid cancellation by DHL?

Factual background

[5] In 2010, the land on Dixon Road was zoned a mixture of rural and future urban, with no existing infrastructure for residential development.

[6] Since 2010, DHL has undertaken subdivision and development of its land on Dixon Road, creating and completing approximately 115 residential dwellings by

1      Application by the Shaws under s 143 of the Land Transfer Act 2017 that the caveat lodged over part of DHL’s land not lapse.
2      DHL.
3      The 2017 deed.

2020. DHL says that the only part of its project left for completion is the property affected by these proceedings.

[7] In 2013, the Shaws owned all the land comprising Certificate of Title SA66C/540, being approximately 10.6987 hectares and legally described as Lot 2 DPS 83799. DHL owned the adjoining land to the north-east, legally described as Lot 5 DPS…

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: [2022] NZHC 1271
Decision Date: 1 June 2022

CaseChat Overview and Summary

The High Court was asked to determine whether Margaret Evelyn Shaw and Murray Nelson Shaw could maintain a caveat over property owned by Dixon Homes Limited (DHL). The property in question was part of a land swap between the Shaws and DHL, as outlined in a 2017 deed of settlement. DHL argued that the Shaws had repudiated the deed, which would allow DHL to cancel the agreement. The Shaws maintained that they had a valid interest in the property and thus a right to caveat it.

The court needed to decide if the Shaws had established a reasonably arguable case that their rights under the 2017 deed remained valid and if DHL had validly cancelled the deed. The central issue was whether the Shaws' actions constituted a repudiation of the deed that would justify DHL's cancellation. The court reviewed the nature of the Shaws' conduct, the circumstances surrounding it, and the motives behind it to determine if there was a repudiation.

The court found that the Shaws had presented a reasonably arguable case that DHL had not validly cancelled the 2017 deed. The alleged failures by the Shaws to sign certain documents and their "de jure" correspondence did not clearly indicate an intention to repudiate the deed. The court noted that the Shaws had an ongoing beneficial interest in the property and that the deed arguably remained in force. The court also found that DHL had not provided clear evidence of prejudice or urgency that would justify discharging the caveat. Consequently, the court granted the Shaws' application to maintain the caveat, pending the outcome of their substantive claim for specific performance.

The court ordered that the caveat not lapse and directed the Shaws to continue taking reasonable steps to prosecute their substantive claims. The Shaws were also granted costs on a provisional basis. If the parties could not agree on the costs, they were to file and serve written submissions within 14 days.

Orders