White v RR Ventures (2018) Ltd - [2022] NZHC 2111

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-000130

[2022] NZHC 2111

IN THE MATTER of an application that a caveat not lapse

UNDER

Section 143 of the Land Transfer Act 2017

BETWEEN

JASON PAUL WHITE and KELLY MARIE WHITE

Applicants

AND

RR VENTURES (2018) LTD

Respondent

Hearing: 7 July 2022

Appearances:

D W Ballinger for Applicants

M R C Wolff and H J Dempsey for Respondent

Judgment:

25 August 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 25 August 2022 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

WHITE v RR VENTURES (2018) LTD [2022] NZHC 2111 [25 August 2022]

[1] The applicants (Mr and Mrs White) entered into an agreement with the respondent (RR Ventures) to purchase an allotment in a subdivision. RR Ventures has purported to cancel the agreement in reliance upon a ‘sunset clause’. Mr and Mrs White do not accept the agreement has been validly cancelled. They apply, pursuant to s 143 of the Land Transfer Act 2017, to sustain a caveat they lodged to protect their interest in the land under the agreement.

Background

[2] In October 2011, Horowhenua District Council granted consent for the subdivision of land at 224 Arawhata Road, Levin and the creation of 18 rural/residential lifestyle allotments. The subdivision did not proceed at that time.

[3] RR Ventures acquired the land in October 2018, intending to implement the subdivision consent and sell allotments whilst retaining two of the allotments as retirement properties for the company’s directors. RR Ventures is proceeding with the subdivision in two stages. The subdivision is now known as Waiwiri Springs.

[4] The allotments have in the past been marketed through Suzanne Cottle of Harcourts Real Estate (Ms Cottle). They were being advertised on a real estate website in August 2020 when seen by Mr and Mrs White. Mr and Mrs White contacted Ms Cottle and were provided with marketing information. Mr and Mrs White were interested in what is Lot 4 of the subdivision.

[5] In email correspondence on 21 September 2020, Mr and Mrs White advised Ms Cottle they wanted to place an offer on Lot 4. Ms Cottle asked them to provide personal details so that a contract could be prepared. Mr and Mrs White advised Ms Cottle that the contract should contain due diligence, finance and sunset clauses.

[6] Ms Cottle provided an initial draft agreement for sale and purchase by email to Mr and Mrs White, but it did not contain a sunset clause. Mrs White’s evidence is that she had a conversation with Ms Cottle by telephone, and Ms Cottle suggested that she could handwrite in a sunset clause that read, “Sunset Clause – 12 months”. Mrs White says she followed those instructions, wrote those words into the agreement, and made two other amendments. Mr and Mrs White then signed the agreement.

Mrs White says the reason she asked…

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 White v RR Ventures (2018) Ltd

Details

AGLC: White v RR Ventures (2018) Ltd [2022] NZHC 2111
Case: [2022] NZHC 2111
Decision Date: 25 August 2022

CaseChat Overview and Summary

The applicants, Mr and Mrs White, brought an application to sustain a caveat they lodged to protect their interest in land under an agreement with the respondent, RR Ventures. RR Ventures purported to cancel the agreement in reliance on a 'sunset clause'. The main issues the court had to decide were whether the sunset clause could be relied upon by RR Ventures, whether RR Ventures took reasonable steps to complete the subdivision, and whether the court should exercise its discretion to remove the caveat. The court found that the sunset clause was ambiguous and could not be relied upon by RR Ventures. The court also found that RR Ventures had not taken reasonable steps to complete the subdivision and that the court should not exercise its discretion to remove the caveat. The caveat shall not lapse, and the applicants are successful and entitled to costs.

Orders