Hanrahan v Hillock Hc Inv

JurisdictionNew Zealand
JudgeOsborne
Judgment Date12 March 2012
Neutral Citation[2012] NZHC 404
Docket NumberCIV-2011-425-000507
CourtHigh Court
Date12 March 2012
BETWEEN
Vickie Hanrahan
Plaintiff
and
John Richard Hillock and Margaret Anne Hillock and Mcculloch Trustees Limited
Defendants

[2012] NZHC 404

CIV-2011-425-000507

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

Summary judgment application seeking return of deposit — plaintiff agreed to purchase a lot in a subdivision — defendant warranted there would be no easements — clauses of agreement required defendant to make all reasonable efforts to a title free of all easements and to satisfy subdivision consent conditions — easement lodged by power company for underground cables — defendant failed to remove — whether consent required registration of easements — whether there was an inconsistency between clauses to provide free title and to comply with the conditions of the subdivision consent.

Appearances:

P M James for Plaintiff/Applicant

N H Soper for Defendants/Respondents

JUDGMENT OF ASSOCIATE JUDGE Osborne ON PLAINTIFF'S SUMMARY JUDGMENT APPLICATION

Introduction
1

At the heart of this case is the correct construction and application of a vendor's warranty that there would be no easements granted over the lot it was selling. Title was issued subject to an electricity easement. The purchaser cancelled the contract following a requisition procedure when the vendor could not clear easements off the title to the lot. The purchaser seeks by summary judgment the return of her deposit.

Summary judgment — the principles
2

The starting point for a plaintiff's summary judgment application is r 12.2(1) High Court Rules, which requires the plaintiff to satisfy the Court that the defendant has no defence to any cause of action in the statement of claim or to a particular part of that cause of action.

3

I summarise the general principles which I adopt in relation to this application:

  • (a) Commonsense, flexibility and a sense of justice are required ( Haines v Carter [2001] 2 NZLR 167, (CA) at 187).

  • (b) The onus is on the plaintiff seeking summary judgment to show that there is no arguable defence. The Court must be left without any real doubt or uncertainty on the matter.

  • (c) The Court will not hesitate to decide questions of law where appropriate.

  • (d) The Court will not attempt to resolve genuine conflicts of evidence or to assess the credibility of statements and affidavits.

  • (e) In determining whether there is a genuine and relevant conflict of facts, the Court is entitled to examine and reject spurious defences or plainly contrived factual conflicts. It is not required to accept uncritically every statement put before it, however equivocal, imprecise, inconsistent with undisputed contemporary documents or other statements, or inherently improbable.

  • (f) In assessing a defence the Court will look for appropriate particulars and a reasonable level of detailed substantiation.

  • (g) In weighing these matters, the Court will take a robust approach and enter judgment, even where there may be differences on certain factual matters, if the lack of a tenable defence is plain on the material before the Court.

  • (h) Where a last-minute, unsubstantiated defence is raised and an adjournment would be required, a robust approach may be required for the protection of the integrity of the summary judgment process.

  • (i) Once the Court is satisfied that there is no defence, the Court retains a discretion to refuse summary judgment but does so in the context of the general purpose of the High Court Rules which provide for the just, speedy and inexpensive determination of proceedings.

What the parties agree on
4

The parties entered an agreement for sale and purchase of the purchaser's lot adopting the REINZ/ADLS form of agreement, 8th ed. 2008(3). The agreement is dated 25 March 2011.

5

Ms Hanrahan agreed to purchase a lot in a proposed subdivision which the Hillocks were undertaking at Lake Hayes. The purchaser's lot (one of two in the proposed subdivision) was to be 0.95 ha (more or less). The subdivision was to be as per a proposed plan attached to and forming part of the contract (Appendix 1 to this judgment).

6

The Further Terms of Sale (typed in after the General Terms of Sale) included cl 17.4 as to easements. It provided:

17.4 The vendor warrants that there will be no easements granted over the lot and that no land covenants will be registered against the lot.

7

The Further Terms also created an obligation upon the Hillocks to complete the subdivision in these terms:

  • 17.2 The vendor will proceed forthwith, at their cost, to:–

    • (a) Complete all works required to subdivide the land;

    • (b) Comply with the conditions of the Subdivision Consent; (subject to clause 17.7);

    • (c) Prepare and submit a land transfer plan in accordance with the application plan to the Council for its approval.

Clause 17.7 (to which 17.2 was subject) contained additional agreements relating to the subdivision which are not relevant in this case.

8

The “Subdivision Consent” referred to in cl 17.2 arose through the decision of commissioners dated 13 May 2008.

9

The Consent contained provisions as to power supply and telecommunications. In particular condition 11c) and 11d) which read:

  • 11 Prior to certification pursuant to Section 224(c) of the Resource Management Act 1991, the consent holder shall complete the following:

    • a) …

    • b) …

    • c) The consent holder shall provide a suitable and usable power supply and telecommunications connection to the building platform on Lot 1. These connections shall be underground from any existing reticulation and in accordance with any requirements/standards of Aurora Energy/Delta and Telecom.

    • d) The overhead power lines shall be replaced with underground cables in accordance with any requirements/standards of Aurora Energy/Delta.

10

The Consent also provided in condition 13 that:

13. All easements shall be granted or reserved.

11

The Further Terms of Sale of the contract contained also a due diligence clause which provided:

  • 18 Purchaser's Conditions

  • 18.1 This agreement is condition [sic] on the purchaser satisfying themselves, following a due diligence inspection of the property and all information which the purchaser deems necessary, that the property is suitable for the purchaser's requirements.

  • 18.2 …

12

The real estate agent involved in the sale of the purchaser's lot, Kathleen Cruickshank, has given evidence that a plan was supplied to Ms Hanrahan with all the other information Ms Cruickshank held on the property. Ms Hanrahan has not denied receipt of the plan. The document Ms Cruickshank says she gave Ms Hanrahan is attached to this judgment as Appendix 2. (I have reproduced in black and white only, whereas the exhibit is in colour). It is self-evidently a plan showing a building platform and vegetation on the purchaser's proposed lot. Running through the property from north to south is a line with the barely legible notation “Overhead powerlines”. It appears that the Cruickshank plan is an enlarged version of part of a Landscape Concept Plan which was submitted to the Queenstown Lakes District Council by the Hillocks as part of the consent process. The version attached to the Commissioners' decision (in its actual size as exhibited in this Court) is attached as Appendix 3 with the plan smaller and with some areas darker.

13

A survey plan was not attached to the contract. Mrs Hillock's evidence is that the survey plan was produced by the surveyor after the agreement was signed and that the plan initially did not include the easement which was the subject of this litigation. She explains that the plan was “subsequently corrected” by the surveyor but that that correction occurred after Ms Hanrahan's period of due diligence, and after confirmation of the contract, (but before the date for settlement of the contract, 24 August 2011).

14

The Hillocks had the subdivision completed and had titles issued on 3 August 2011. The Title Plans for the purchaser's lot (Appendix 4A and 4B to this judgment) contained easements over the lot. In particular, the title to the purchaser's lot was:

Subject to a right (in gross) to convey electricity over parts marked M, T and BD on DP 442220 and a right (in gross) to transform electricity over part marked BD on DP 442220 in favour of Aurora Energy Limited created by Easement Instrument 8815722.4 — 3.8.2011 at 9.33 am …

(“the electricity easements”)

15

When she was called upon to settle, Ms Hanrahan, through her solicitors, requisitioned the title. She required the Hillocks to register surrenders of the easements over the purchaser's lot. When the Hillocks indicated that they could not remove the easements from the title, Ms Hanrahan gave notice of cancellation of contract and called for the return of the deposit. The Hillocks refused to return the deposit. Ms Hanrahan then issued this proceeding.

16

When Ms Hanrahan notified her requisition, the Hillocks had immediately rejected the substance of Ms Hanrahan's contention that the easements should be removed. The Hillocks' solicitors replied in these terms:

Dear David,

Further to your conversation with Kerry, we confirm that the original plan omitted to include the electricity easement needed to service lot 1.

The surveyor original [sic] inserted these Aurora easements as proposed easements, however upon applying for approval of the plan by Council was required to insert the easements into the Memorandum of easements so that they would be required for the deposit of the plan with LINZ. Attached is a copy of the survey-approved plan showing the easements in the memorandum.

Accordingly, the easements were required to be registered upon the subdivision of the land.

We trust this satisfies your concerns. Let us know if you require any further information.

17

The Hillocks' solicitors wrote further by email the following day. They made additional points:

  • • It was not accepted that Ms Hanrahan was...

To continue reading

Request your trial
1 cases
  • Hanrahan v Hillock HC Inv
    • New Zealand
    • High Court
    • 12 de março de 2012
    ...HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY CIV-2011-425-000507 [2012] NZHC 404 Hearing: BETWEEN VICKIE HANRAHAN Plaintiff AND JOHN RICHARD HILLOCK AND MARGARET ANNE HILLOCK AND MCCULLOCH TRUSTEES LIMITED Defendants 10 February 2012 (Heard at Invercargill) Appearances: P M James for Pla......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT