CASHMERE CAPITAL LIMITED V CROSSDALE PROPERTIES LIMITED AND ORS CA CA730/2008

CASHMERE CAPITAL LIMITED V CROSSDALE PROPERTIES LIMITED AND ORS CA CA730/2008 15 May 2009IN THE COURT OF APPEAL OF NEW ZEALAND CA730/2008 [2009] NZCA 185BETWEEN CASHMERE CAPITAL LIMITED Appellant AND CROSSDALE PROPERTIES LIMITED First Respondent AND PATRICK KEVIN CARROLL Second Respondent AND THOMAS WILLIAM RAINEY Third Respondent AND B V STRANGER Fourth Respondent AND MARGARET MARY TERESA CUNNEEN Fifth Respondent AND PATRICK KEITH BROWN Sixth Respondent AND JUNE H PARSONS Seventh Respondent AND MARY ELLA LORY Eighth Respondent Hearing: 2 April 2009 Court: Hammond, Arnold and Baragwanath JJ Counsel: G A Hair for Appellant N A Till QC for 3rd to 8th Respondents Judgment: 15 May 2009 at 3pmJUDGMENT OF THE COURTA The appeal is dismissed. B The appellant must pay the respondents costs for a standard appeal on a band A basis and usual disbursements____________________________________________________________________ REASONS OF THE COURT(Given by Baragwanath J)Context of appeal[1] The appellant Cashmere Capital Ltd lent $875,000 to the first respondent Crossdale Properties Ltd on the security of a registered first mortgage over eight titles of which Crossdale was registered as proprietor and on each of which a residential unit had been built. At the time of the mortgage advance the second, third, fourth, seventh and eighth respondents, Mr Carroll, Mr Rainey, Mr Stranger, Ms Parsons and Ms Lory, were occupying units for which they had lent Crossdale sums of money interest free on terms that included a right to occupy their respective units for life. After the mortgage advance was made Ms Cunneen and Mr Brown, the fifth and sixth respondents, entered similar agreements with Crossdale, replacing former occupiers. [2] Crossdale defaulted under the loan and its director Mr Campbell, who had guaranteed the loan, was bankrupted. Cashmere seeks to recover its funds by mortgagee sale of the individual lots occupied by the respondents. In the High Court Fogarty J gave summary judgment in favour of the respondents. He held that Cashmere had consented to the agreements between Crossdale and the respondents and so could not enforce the mortgage against the titles to their units. He also held that the respondents are entitled to protection under the Retirement Villages Act 2003. [3] On appeal Cashmere challenges both conclusions of the High Court. The High Court decision is supported by all respondents other than Mr Carroll, who has vacated his unit and elected to take no part in the appeal.Issue 1: Did Cashmere consent to the occupation loan agreements?[4] Section 119 of the Land Transfer Act 1952 states that no lease of mortgaged land shall be binding on the mortgagee except so far as the mortgagee has consented thereto. [5] Section 105 provides:Upon the registration of any transfer executed by a mortgagee for the purpose of exercising a power of sale over any land, the estate or interest of the mortgagor therein expressed to be transferred shall pass to and vest in the purchaser, freed and discharged from all liability on account of the mortgage, or of any estate or interest except an estate or interest created by any instrument which has priority over the mortgage or which by reason of the consent of the mortgagee is binding on him.(Emphasis added.) [6] Cashmere made its advance with knowledge that the units on Crossdale's land were tenanted. An undated application to it for loan finance recorded that fact. Cashmere's Administration Operations Manager, Mrs Hamilton, stated in reference to the loan decision:We understood that the units at 7C Curletts Road, Riccarton, Christchurch were rental units and Crossdale was receiving regular rental income of $185 per week from each unit.She added that the registered valuations supplied by Mr Campbell made no reference to the retirement village or to any arrangement with the occupants. Her husband Mr Hamilton, a director of Cashmere, acknowledged that the application recorded that the properties had all been rented. He stated:6. There was no suggestion that the Curletts Road units owned by "Crossdale Properties Limited" were anything other than rental units and no suggestion of any retirement village or rest home developments 7. To the contrary, in relation to the Curletts Road property I understood that Mr Campbell was interested in carrying out a large development in the future, which would involve the owner of the adjacent motor camp collectively identified as providing 22,000m2 of land. The impression given was that this would ultimately lead the existing buildings being demolished. 11. As noted in the application approval: • The cash flow budget identified debt servicing to be partly capitalised interest with gross rental for the Curletts Road units at $60,000 per annum 12. The rental amount used for the approval of the loan was $60,000 per annum ($114.23 per week). However, Business Finance and Insurance Services Limited had confirmed an actual rental rate of $185.00 per week. 13. The condition and nature of the units were consistent with short term residential accommodation, which was my understanding. They were old motel units.[7] He added:16. Cashmere does not have possession of the units. The Defendants continue to occupy the various units and retain the keys for the units. Cashmere has never requested and does not receive any payments/income in respect of the units.[8] In fact each respondent had entered a written agreement with Crossdale, of which that of Mr Rainey was treated in argument as typical. It began with recitals:WHEREAS1. The Landlord is establishing a village complex known as "Crossdale Courts Retirement Community" situated at 7c Curletts Road, Christchurch (hereinafter called "the Complex") with individual units for occupancy by eligible persons as determined by the Landlord. 2. The Resident in accordance with the criteria established by the Landlord has been allocated Unit Number 6 (hereinafter called "the Unit") on the terms hereinafter set out.It continued:NOW THEREFORE IT IS AGREED as follows:-OCCUPANCY1 IN consideration of the terms and conditions herein set out the Landlord will permit the Resident to occupy the Unit for the term specified in clause 7(a) hereof (subject to the provisions of clause 8 hereof) and commencing on the 28 th day of June 1999.RESIDENT'S OBLIGATIONS2. THE Resident will on the execution hereof pay to the Landlord by way of an interest free loan the sum of Forty Three Thousand Nine Hundred and Fifty Dollars ($43,950) (hereinafter called "the Occupancy Loan") for application by the Landlord in such manner as the Landlord thinks fit.It contained further obligations by the Resident to make payment of a weekly service charge calculated as a proportion of the operating costs of the Complex. The landlord's obligations began with the occupancy rights of the Resident: OBLIGATIONS OF THE LANDLORD7. THE Landlord hereby covenants and agrees with the Resident as follows:(a) To permit (the Resident performing and observing all and singular the covenants and conditions on the part of the Resident herein contained and implied) the Resident to occupy the Unit for the life of the Resident, or if there shall be more than one Resident signing this agreement, the survivor of them or until the Residents occupancy of the said Unit is terminated in accordance with the provisions hereof and to allow the Resident quietly to hold and enjoy the Unit without any interference or interruption by the Landlord or any person claiming under it. The Resident shall have the use of such indoor and outdoor social recreational and other communal facilities as shall be available within the Complex.(Emphasis added.) There followed:MUTUAL COVENANTS 8. THE parties hereby mutually covenant and agree: (b) The rights of the Resident under this Agreement are the rights and privileges herein expressly granted and notwithstanding anything hereinbefore contained or implied do not entitle the Resident to any proprietary interest in or charge over the properties or assets of the Landlord nor does this Agreement constitute a registrable Lease.(k) This Agreement and the occupancy hereby created shall be terminated upon the expiry of: (i) One month's prior notice in writing by the Resident given to the Landlord of the Resident's intention to vacate the unit OR (ii) One month's prior notice in writing by the Landlord given to the Resident that the Agreement is terminated and that the Resident is required to vacate the Unit accordingly: such notice may only be given by the Landlord.a. If the Resident is in breach of any one or more of his/her obligations hereunder OR b. If in the opinion of the Landlord it is in the best interests of the community of residents that the Resident ceases to reside within the Complex. In either event the weekly service charge shall continue to be payable until vacant possession of the Unit has been made available to the Landlord. (l) This Agreement and the occupancy hereby created shall also be terminated as follows: (i) By the death of the Resident or if there shall be more than one resident signing this agreement, the survivor of them and upon such event the weekly service charge shall continue to be payable until vacant possession of the Unit has been made available to the Landlord OR (ii) In the circumstances and in the manner prescribed in clause (o) hereof [which deals with destruction of the premises]. [9] In the absence of argument we offer no comment on whether clause 8(b) was repugnant to Crossdale's grant (cf Watling v Lewis [1911] 1 Ch 414 (CA)), or was effective to prevent the respondents' advisors from lodging a caveat against Crossdale's title to protect their interest (cf Landco Albany Ltd v Fu Hao Construction Ltd [2006] 2 NZLR 174 (CA); that did not occur. There is no evidence of any knowledge on the part of the appellant of the existence, let alone the terms, of the agreements between Crossdale and the respondents.The High Court judgment on consent[10] Fogarty J's decision that Cashmere had consented to the agreements, so as to subordinate its rights as mortgagee to the respondents' interests under their agreements, relied on the in personam exception to the rule of indefeasibility of title under the Land Transfer Act. That exception was recognised by the Privy Council inFrazer v Walker [1967] NZLR 1069 and Oh Hiam v Tham Kong [1980] 2 MLJ 159 and by the Supreme Court in Regal Castings Ltd v Lightbody [2008] NZSC 87. [11] The judge cited the decision of Williams J in Thomson v Finlay (1887) 5 NZLR 203 as supporting the view that Parliament intends that unregistered estatesand interests should be readily recognised by a liberal application of the concept of "consent". There Finlay bought from a mortgagee at mortgagee sale a dairy farm which the registered proprietor had leased to Thomson after the mortgage but before the mortgagee sale. Williams J held that Finlay's title was subject to Thomson's lease. [12] But as Somers J observed in Registered Securities Ltd (RSL) v Christensen Potato Company Ltd CA 121/88 1 September 1989 at 5, in that case s 88 of the Land Transfer Act 1885, corresponding to s 119 of the Land Transfer Act 1952, was not mentioned. [13] In RSL v Christensen Somers J analysed the evidence as follows (at 5): the evidence is that RSL did not know the terms of the lease to which it was claimed to have given consent. The evidence for CPC was to the effect that RSL agreed in general terms to a lease for the purpose of growing the crop or that it simply consented to the crop being grown. We are of opinion that if RSL agreed with the mortgagor that his brother might lease some land on which to grow potatoes or merely agreed that the brother might grow such a crop for his own benefit and the brother grew the crop on such an understanding then RSL could not be heard to claim the benefit of the crop(Emphasis as added by Fogarty J.) [14] Fogarty J sought to distinguish the following passage in that judgment, which was later applied by Casey J for this Court in NZ Fisheries Ltd v Napier City Council(1990) 1 NZ ConvC 190,342 at 190,344:Delivering the judgment of the Court, Somers J said at p 4, in a review of the position at common law: "The onus lies on the tenant to show that the mortgagee must recognise his right of occupationMere knowledge by the mortgagee of the existence of the lease is not enough."Casey J added (at 190,344):As the dictionary definition indicates, "consent' involves agreement to a proposal or request. Mere acquiescence in a state of affairs would not be enough. This distinction is made clear in Bell v Alfred Franks & Bartlett Co Ltd [1980] 1 All ER 356 in which the Court of Appeal had to consider whether a landlord had consented to the use of premises or acquiesced therein, in the context of sec 23(4) of the Landlord and Tenant Act 1954, which referred to acquiescence by an immediate landlord, or consent by a past landlord, to breaches of covenant. Although the two words mustnecessarily have different meanings in that section, we are of the view that the distinction made in the three judgments of Megaw, Shaw and Waller LJJ is a valid one – namely, that acquiescence involves no more than the passive standing by without objection, whereas consent requires a positive affirmative act such as written or oral acceptance or even an implied acceptance by conduct. (This summary is taken from the headnote to that case.) It is a consent of this nature which is required for a mortgagee to be bound under sec 105 and 119.[15] Fogarty J expressed the opinion:[52] The analysis and language chosen by the Court of Appeal Judges in those two [New Zealand] cases is obviously coloured by the facts that they were considering. Commercially there is a considerable difference between a lender deciding to take as security premises which are tenanted, from a lender acquiescing or positively consenting to a subsequent lease. As already noted, in the former case, and particularly where the premises are commercial, the presence of quality tenants will enhance the value of the property as a security. In the latter instance the mortgagor will usually be obliged by contract to obtain the mortgagee's consent to any alteration in the leasing of the premises. Indeed, if a subsequent lease is to be registered, s 115(4) of the Land Transfer Act requires the consent of the mortgagee to be obtained. If the subsequent leases are informal and entered into without the knowledge of the mortgagee there is no relevant principle of common law or equity that would make it meritorious that the mortgagee should be bound. [53] On the other hand, where the mortgagee has approved the property as a security, in part because it is leased, there is suggestion of an injustice if the same mortgagee subsequently seeks to deny the lessee's interest. The law of equity leans against persons seeking to take advantage of a fact and then deny the fact as it suits. That thinking is embedded in the reasoning of Somers J in RSL, highlighted in bold above, and generally in the reasoning of Williams J in Thomson. [54] It is important to keep in mind that at common law the purchaser obtains title from the mortgagee who, by reason of the mortgage, holds the legal title, whereas under the Land Transfer Act, as Williams J explains, the purchaser obtains the mortgagor's title. So if the mortgagee under the Land Transfer has consented to the obligations assumed by the mortgagor there is no basis in justice for either the mortgagee or the purchaser to have better title. [55] For these reasons there is no doubt in my mind that the reason why there are no cases where a mortgagee has even tried to disavow unregistered leases in place before the mortgage was granted, is because it is very unlikely that there will be a set of facts justifying such a disavowal.[16] We do not accept the judge's view that Parliament intends that unregistered estates and interests should be readily recognised by a liberal application of theconcept of "consent". On the contrary, as the Privy Council stated in British Cattle Co v Caribe Ltd [1998] 1 WLR 1529 at 1533-4:Although the details of the Torrens system vary from jurisdiction to jurisdiction, it is the common aim of all systems to ensure that someone dealing with the registered proprietor of title to the land in good faith and for value will obtain an absolute and indefeasible title, whether or not the title of the registered proprietor from whom he acquires was liable to be defeated by title paramount or some other cause. The principle is well stated in relation to the State of Victoria by the Board in Gibbs v. Messer [1891] A.C. 248, 254: The main object of the Act, and the legislative scheme for the attainment of that object, appear to them to be equally plain. The object is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author's title, and to satisfy themselves of its validity. That end is accomplished by providing that every one who purchases, in bona fide and for value, from a registered proprietor, and enters his deed of transfer or mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author's title. That principle has been repeatedly affirmed in the various jurisdictions most recently in relation to the law of New Zealand by the Board in Frazer v. Walker [1967] 1 A.C. 569. To achieve this objective, it is critical to keep to a minimum the number of matters which may defeat the title of the registered proprietor. However, it is well established that there are certain exceptions.[17] Among them is the in personam exception. Fogarty J cited (at [42]) the following discussion by Tipping J in Regal Castings Ltd v Lightbody:[154] it is important to recognise, as the in personam jurisdiction does, that the registered proprietor does not take free of interests (whether registrable or not) which his own conduct binds him to acknowledge. That conduct may give rise to contractual obligations or to obligations which equity requires the registered proprietor to observe. Those obligations create interests in other parties over which s 62 does not give paramountcy. The classic example of such an interest is that of a beneficiary where the registered proprietor holds the land as trustee. A trustee's indefeasible title does not prevent the enforcement of trust obligations, they being an obvious case when the registered proprietor's conscience is engaged. [155] The in personam jurisdiction and its associated jurisprudence have always recognised that the essential purpose of Sir Robert Torrens' system was to simplify and make more certain transactions involving transfer and other dealings in respect of land. Vulnerability to non-notified unregistrable interests would not be consistent with that purpose. The Torrens system was not, however, designed to remove all scope for equitable intervention against those who are registered proprietors of land. In giving the advice of thePrivy Council in Oh Hiam v Tham Kong, Lord Russell said that the Torrens system did not deprive "equity of the ability to exercise its jurisdiction in personam on grounds of conscience". He added that the Court could make "an order in personam that the registered proprietor should defeat his own title". [156] That may be done when it would be contrary to good conscience for the registered proprietor to rely on the register so as to defeat a claim or remedy which equity would otherwise enforce or grant against him. A decree of specific performance of a contract to sell Land Transfer Act land is another classic example of equity working alongside rather than in defiance of s 62 of the Land Transfer Act. In short, the in personam jurisdiction exemplifies the role which equity has always performed of preventing people from relying on their rights at law if it would be unconscionable for them to do so; and, in the present instance, provided that equitable intervention would not undermine the statutory purposes of the Act[18] But to apply the in personam exception in the present case would permit the exception to consume the indefeasibility rule. In both RSL v Christensen and NZ Fisheries Ltd v Napier City Council this Court has accepted the line drawn in Bell v Alfred Franks & Bartlett Co Ltd [1980] 1 All ER 356. The latter decision was applied by this Court in Harman & Co Solicitor Nominee Company v Secureland Mortgage Investments Nominees Ltd [1992] 2 NZLR 416 at 421. In the absence of "a positive affirmative act such as written or oral acceptance or an implied acceptance by conduct" the rule will apply and not its exception. Here there is neither. Cashmere was entitled to rely on the fact that the register did not reveal any leasehold interest or caveat claiming such interest. In their absence it was reasonable for Cashmere to infer that the tenancies were of relatively short term which it could terminate on relatively short notice. In conveyancing matters the centrality of the Land Transfer title has always been dominant. Its in personam exception should be confined to cases that truly engage the conscience of the party whose registered priority is challenged. Measured by the RSL v Christensen and NZ Fisheries Ltd v Napier City Council criteria this is not such a case. We therefore accept the appellant's argument on the first issue.Issue 2: Are the respondents entitled to protection under the Retirement Villages Act?[19] The occupancy agreements of Mr Carroll, Mr Rainey, Mr Stranger, Mr Brown and Ms Lory all preceded not only what we will call the cutoff date statedin s 22(4)(b) of the Retirement Villages Act 2003 and the date of the Royal Assent to the Act on 30 October 2003 but also the Cashmere first mortgage which was registered on 11 September 2006. The occupancy agreements of Ms Cunneen and Ms Parsons followed, on 14 November 2006 and 15 February 2007 respectively. The mortgage preceded the coming into force of the following sections relevant to this appeal:• on 1 February 2004 ss 6(1) and 103• on 1 May 2007 ss 10, 21 and 22. [20] By s 8 of the Interpretation Act 1999 an Act comes into force on the date stated or provided in the Act for its commencement. [21] "Retirement village" is defined by s 6(1) of the Act as meaning:...the part of any property, building, or other premises that contains 2 or more residential units that provide, or are intended to provide, residential accommodation together with services or facilities, or both, predominantly for persons in their retirement, or persons in their retirement and their spouses or partners, or both, and for which the residents pay, or agree to pay, a capital sum as consideration[22] Ever since the Royal Assent on 30 October 2003 all mortgagees whose security is later than 31 December 2002 and over certificates of title to property which fall within this definition have been potentially liable to have their security subjected to the Act. That can occur: (a) by registration of the village by its operator in compliance with s 10 which requires the operator to ensure the village is registered; (b) if the operator, in breach of s 10, fails to ensure the village is registered, an Order in Council may be made under s 103 on the recommendation of the Minister responsible for administration of the Act, declaring specified property to be a retirement village for the purpose of the Act. The grounds on which that may be done includethe need to clarify whether premises whose status is in doubt are or are not a retirement village. [23] In this case the property was never registered under s 10. But on 30 June 2008 the Retirement Villages (Crossdale Courts) Order 2008 (2008/198) was made by Order in Council under s 103. No proceeding has been brought to challenge the validity of the Order in Council. The issue concerns its legal effect. [24] Section 103 states:Regulations defining retirement villages(1) The Governor-General may, by Order in Council made on the recommendation of the Minister, declare specified property, buildings, or other premises, or property, buildings, or other premises of a specified class, to be or not to be a retirement village for the purposes of this Act.[25] The Order in Council, which came into effect on the 28 th day after notification in the Gazette, provided:3 Crossdale Courts declared retirement villageThe property known as Crossdale Courts and described in the schedule is declared to be a retirement village for the purposes of the Retirement Villages Act 2003.The schedule lists 22 titles, including those of the respondents. [26] Had the property become a retirement village by registration under s 10 it would have become the duty of the Registrar of Retirement Villages under s 21 to notify the Registrar-General of Land of the registration. By s 21(3) the Registrar- General must note on every certificate of title or computer register relating to a registered retirement village the words "Subject to section 22 of the Retirement Villages Act 2003 (which provides priority for the rights of residents ahead of the rights of holders of security interests)". By subs (4) the Registrar-General of Land must, when the memorial referred to in subsection (3) is noted, give notice of the memorial to the holder of any security interest registered against the certificate of title.[27] Section 22 must be reproduced in full:22 Effect of memorial(1) If a memorial is entered under section 21, then, unless all residents of the retirement village have received independent legal advice and at least 90% of those residents have consented in writing, the holder of a security interest or any receiver or liquidator or statutory manager of property comprising the retirement village or of any operator of the village must not exercise any right to— (a) dispose of the retirement village other than as a going concern; or (b) disclaim any occupation right agreement relating to the retirement village as onerous property under section 269 of the Companies Act 1993 or section 117 of the Insolvency Act 2006; or (c) evict any resident or exclude any resident from the use of any facilities or any part of the retirement village to which that resident is ordinarily entitled. (2) Subsection (1) applies whether or not the security interest is registered against the certificate of title. (3) The holder of the security interest, or any receiver or liquidator or statutory manager of property comprising the retirement village or of an operator of the village, may apply to the High Court for an exemption from any requirement of subsection (1), and that exemption may be granted subject to any conditions that the Court considers appropriate. (4) This section does not affect— (a) the exercise of any right conferred on any person under an occupation right agreement (including, without limitation, any right to specified services or any right conferred on the operator of a retirement village to terminate the occupation right of a resident or exclude a resident from the use of any facilities or part of the village, or to reduce or cancel services); or (b) the exercise of any specified right by a person who— (i) was the holder of a security interest in the retirement village on 31 December 2002; and (ii) has not, since that date, obtained any new security interest in the village or agreed to any increase— (A) in the term of the security interest; or (B) if the holder offers a credit facility (for example, an overdraft), in the maximum sum secured by that security interest; or(C) if any other sum is secured by the security interest, in the maximum sum secured by that interest; and (iii) has failed or refused to consent to the registration of the village. (5) In subsection (4)(b), specified right means any right conferred by the security interest referred to in subsection (4)(b)(i) (being a right provided in that security interest as at 31 December 2002).[28] Parliament set a threshold of 31 December 2002. Section 22 requires the Registrar to notify the Registrar-General of Land of the registration of a retirement village; and the Registrar-General of Land must then record on the title to the land comprising the village that it is subject to s 22. [29] Section 22 has no application to the exercise of rights by a person who wason 31 December 2002 the holder of a debt security within the meaning of the Securities Act 1978 (which includes a mortgage) over a retirement village and has failed or refused to consent to the registration of the village. Its clear purpose is to ensure that those who after 31 December 2002 became the holder of such security should be subject to s 22 once the Registrar-General notes the certificate of title that the land. That is so whether or not the mortgage itself is registered (subs (2)). [30] The Act is to be read as a whole. It must follow that, if there has been no application for registration under s 10, but there is an Order in Council under s 103, the Registrar-General must note on the certificate of title to the land comprising the village that it is subject to s 22. At that point s 22 bites. [31] Its effect is stated in s 22(1). In the absence of independent legal advice to all residents and the written consent of 90% of them, a mortgagee must not: (a) dispose of the retirement village other than as a going concern; (b) disclaim any occupation right agreement as onerous property under insolvency legislation; (c) evict or exclude any resident from the village.[32] It is open to the mortgagee to apply to the Court for relief under subs (3). [33] If the Registrar-General has duly registered the Crossdale Village under s 21 it follows that s 22 applies to the appellant. If the Registrar-General has not it is a duty to do so and it should be performed forthwith. [34] On that basis the decision of Fogarty J on the second issue was correct and the respondents are entitled to the rights conferred by s 22(1). Since the mortgage in this case was not granted until 11 September 2006, well after the 31 December 2002 cutoff date provided for by the Act, Cashmere was always vulnerable to having the Act apply to the mortgage. That is what has occurred. [35] We add that it is unusual and, as a rule, undesirable for a statute to operate retrospectively. When Cashmere took its mortgage although the Act had received the Royal Assent none of the provisions on which this judgment turns had become law. It is nonetheless the expressed intent of Parliament that the Act should operate retrospectively to 31 December 2002. Because the prospect of such retrospection was explicitly stated in a measure to which the Royal Assent had been given prior to the mortgage, there is no injustice to Cashmere.Result[36] The appeal is dismissed with costs.Solicitors: Malley & Co, Christchurch, for Appellant Cameron & Co, Christchurch for 2nd Respondent Cameron & Co, Christchurch, for 3rd to 8 th Respondents