Teece v Veint
[2021] NZHC 2557
•29 September 2021
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2020-425-000073
[2021] NZHC 2557
UNDER the Land Transfer Act 2017 IN THE MATTER
of an application that a caveat not lapse
BETWEEN
DAVID JOHN TEECE
First Applicant
AND
HERITAGE PTC, LLC
Second Applicant
AND
LLOYD JAMES VEINT
Respondent
Hearing: On the papers Counsel:
S J Mills QC and J Moss for Applicants
P F Whiteside QC and D M Jackson for Respondent
Judgment:
29 September 2021
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 29 September 2021 at 11.00 am pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
TEECE v VEINT [2021] NZHC 2557 [29 September 2021]
[1] In a judgment of 9 March 2021, I made an order that pending further order of the Court a caveat lodged by the applicant (Dr Teece) over the respondent’s (Mr Veint) land shall not lapse.1 The caveat asserts an interest in the land pursuant to a contractual equitable easement.
[2] At [66] of the judgment, I noted that as a condition of sustaining the caveat Dr Teece would usually be required to diligently pursue his extant proceeding to establish his entitlement to the easement2 and, furthermore, may be required to provide a suitable undertaking to pay damages in the event that the interest claimed by the caveat is not ultimately sustained. At [68] of the judgment, I expressed an expectation that counsel would confer and agree on the terms of any conditions on the making of the order sustaining the caveat. I reserved leave to make further submissions if agreement was not reached.
[3] Since my judgment, Mr Veint has applied unsuccessfully to strike out Dr Teece’s proceeding to establish his entitlement to the easement3 and I understand that proceeding will proceed to trial in the New Year.
[4] Counsel have not reached agreement as to the terms of potential conditions of sustaining Dr Teece’s caveat. The parties now ask the Court to determine the matter. The applicants do not oppose a condition they provide an undertaking as a condition of sustaining the caveat. The difference between the parties concerns only the wording of the undertaking.
[5] Helpfully, counsel have provided two undertakings for the Court’s consideration.
[6]Mr Veint seeks an order that the applicants provide an undertaking which reads:
As a condition of sustaining the caveat the subject of these proceedings, the applicants hereby undertake to pursue diligently their claim to establish an entitlement to the easement sought in the proceeding CIV-2003-425-557 and further they undertake to pay such damages as the Court in that proceeding
1 Teece v Veint [2021] NZHC 409.
2 Teece v Veint HC Invercargill CIV-2003-425-557.
3 Teece v Veint [2021] NZHC 2048.
considers fit to award in the event that the interest claimed by the caveat is not ultimately sustained.
[7]The applicants propose an undertaking which reads:
As a condition of sustaining the caveat granted under CIV 2020-425-0073, the applicants undertake to prosecute their claim for specific performance of registration of the legal easement in CIV-2003-425-557 and undertake to pay any damages that this Court determines arise for loss to Mr Veint caused as a consequence of the caveat in the event that the interlocutory order sustaining the caveat is set aside.
[8] The applicants consider the undertaking proposed by Mr Veint is not appropriate as Mr Veint seeks an undertaking under a different proceeding in which the second applicant is not a party. Further, they object to an undertaking that Dr Teece “pursue diligently” his claim because an undertaking to pursue the claim simpliciter is sufficient and the words “pursue diligently” are ambiguous.
[9] In my view, in the somewhat unusual circumstances of his case the applicants should be required to give an undertaking to pay Mr Veint such damages as the Court sees fit should it ultimately be held that the caveat should not have been lodged. Further, I do not consider it objectionable to include a requirement for an undertaking that Dr Teece pursue diligently his proceeding for specific performance and there have certainly been other cases where an undertaking has been required in those terms.
[10]Accordingly, I consider the appropriate form of undertaking is as follows:
As a condition of sustaining the caveat in this proceeding Dr Teece undertakes to pursue diligently the claim for specific performance of registration of a legal easement in CIV-2003-425-557 and the applicants undertake to pay any damages the Court sees fit to award Mr Veint caused as a consequence of the caveat in the event the interest claimed by the caveat is not sustained in that proceeding.
Result
[11] The applicants shall within 15 working days file an undertaking in this proceeding as set out in para [10] above.
[12]There shall be no further order as to costs.
O G Paulsen Associate Judge
Solicitors:
MDS Law, Christchurch Berry & Co, Christchurch