Wallace v Studio New Zealand Ltd - [2021] NZCA 392

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA284/2021
[2021] NZCA 392

BETWEEN	BRUCE JOHN WALLACE First Appellant SARAH JANE WALLACE Second Appellant TLR WALLACE TRUSTEE COMPANY LIMITED Third Appellant TONEA TRUSTEE COMPANY LIMITED Fourth Appellant
AND	STUDIO NEW ZEALAND LIMITED Respondent

Hearing:	21 July 2021
Court:	Miller, Thomas and Wylie JJ
Counsel:	D J Chisholm QC for Appellants T P Mullins and C Upton for Respondent
Judgment:	18 August 2021 at 2.00 pm

JUDGMENT OF THE COURT

AThe respondent’s application to adduce further evidence is granted.
BThe appeal is allowed. Order that Caveat No. 11884633.1 lapse. This order is not to take effect until 4.00 pm on 1 September 2021.
CThe respondent must pay the appellants one set of costs for a standard appeal on band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

The appellants — Bruce Wallace, Sarah Wallace, TLR Wallace Trustee Company Ltd and Tonea Trustee Company Ltd (the trustees) — appeal a judgment given by Associate Judge Andrew in the High Court at Auckland on 3 May 2021.[1] The Judge ordered that a caveat lodged by Studio New Zealand Limited (SNZ) over a property in Porchester Road, Takanini, Auckland (the property) not lapse, conditional on SNZ taking all reasonable steps to prosecute the substantive proceedings extant between the parties.
[1]Studio New Zealand Ltd v Wallace [2021] NZHC 959 [High Court judgment].
The trustees assert that the Associate Judge erred and that an order should be made that the caveat lapse. SNZ maintains that it has a reasonably arguable case to support the interest claimed in the caveat and that the Associate Judge was correct to so conclude.
SNZ applied for leave to adduce further evidence on the appeal. This application was initially opposed by the trustees. In the event, both counsel consented to the further evidence coming in and accordingly we grant the application.

Factual background

Initial negotiations

Bruce and Sarah Wallace, TLR Wallace Trustee Company Ltd and Tonea Trust Company Ltd own a one-half share of the property as trustees of the BJ Wallace Trust. They own the other half share as trustees of the SJ Wallace Trust.
SNZ was incorporated in February 2009. Its sole director is Andrew Coldicutt. The company was incorporated with the intention that it would develop a purpose‑built screen production complex in Auckland.
In mid-2016, the trustees were advertising the property for sale. Mr Coldicutt saw the advertisement. He considered that the property might be suitable for the development of the screen production complex. Mr Coldicutt and his business partner, Richard Glenn, approached the trustees and expressed an interest in the property. Discussions between the parties and other entities associated with the Wallace family ensued. In the course of these discussions, SNZ disclosed what it proposed to do with the property. A confidentiality agreement was signed by Bruce Wallace, as well as by two other members of the Wallace family, James Wallace and Robert Wallace,…

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: [2021] NZCA 392
Decision Date: 18 August 2021 at 2.00 pm

CaseChat Overview and Summary

Wallace v Studio New Zealand Limited is an appeal against a decision of the High Court at Auckland that a caveat over a property in Porchester Road, Takanini, Auckland, lodged by Studio New Zealand Limited (SNZ), should not lapse. The appellants, Bruce Wallace, Sarah Wallace, TLR Wallace Trustee Company Ltd and Tonea Trustee Company Ltd, argue that the caveat should lapse because SNZ has not established a reasonably arguable case for the interest claimed in the caveat. The Court of Appeal agreed with the appellants and allowed the appeal. The Court found that the correspondence between the parties did not give rise to a binding agreement for the sale and purchase of the property. The Court also found that the caveat was not a valid ground for lodging the caveat in the first place. The appeal was allowed, and the caveat was ordered to lapse. SNZ was ordered to pay the appellants one set of costs for a standard appeal on a band A basis with usual disbursements.

Orders