R B MCCLURE, J W MCCLURE AND HOLLAND BECKETT TRUSTEE NO.8 LTD AS TRUSTEES OF THE RAJANASAC TRUST v R L COBB AND M Z COBB [2017] NZHC 1911

R B MCCLURE, J W MCCLURE AND HOLLAND BECKETT TRUSTEE NO.8 LTD AS TRUSTEES OF THE RAJANASAC TRUST v R L COBB AND M Z COBB [2017] NZHC 1911

The caveat was dismissed because the applicants failed to demonstrate a reasonably arguable caveatable interest arising from clause 2; the proper remedy to protect the easement rights is registration of the agreed easement instrument and not sustaining a caveat; rectification claims are distinct and must be pursued separately; accordingly the Court ordered registration of the easement and dismissed the caveat application.

Citation
[2017] NZHC 1911
Parties
Applicants/defendants: Royce Boyd McClure; Janet Whitfield McClure; Holland Beckett Trustee No.8 Ltd as trustees of the Rajanasac Trust; Respondents/plaintiffs: Raymond Lawrence Cobb; Michelle Zillah Cobb
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 August 2017
Procedural Posture
Application to Sustain Caveat and Summary Judgment Application for Registration of Easement/specific Performance / High Court Interlocutory Judgment on Competing Applications (applications Heard; Judgment Delivered)
Outcome
Application to sustain caveat dismissed; order for registration of the easement as per Schedule 3 of the 17 November 2011 agreement; costs awarded to the Cobbs on a 2B basis with disbursements
Legal Topics
Caveat, Easement, Rectification, Specific Performance, Summary Judgment, Restrictive Covenant
Property Equity Contract Civil Procedure Caveat Easement Rectification Specific Performance +2 more

Case Brief

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Parties

Royce Boyd McClure; Janet Whitfield McClure; Holland Beckett Trustee No.8 Ltd as trustees of the Rajanasac Trust

Applicants/defendants

Raymond Lawrence Cobb; Michelle Zillah Cobb

Respondents/plaintiffs

Procedural Posture

Application to Sustain Caveat and Summary Judgment Application for Registration of Easement/specific Performance / High Court Interlocutory Judgment on Competing Applications (applications Heard; Judgment Delivered)

Legal Issues

  1. 1 Whether the applicants have a caveatable interest in the respondents' land based on clause 2 of Schedule 3
  2. 2 Whether clause 2 operates as a restrictive covenant or otherwise creates an equitable interest enforceable by caveat
  3. 3 Whether the easement instrument should be registered (specific performance)

Ratio Decidendi

The caveat was dismissed because the applicants failed to demonstrate a reasonably arguable caveatable interest arising from clause 2; the proper remedy to protect the easement rights is registration of the agreed easement instrument and not sustaining a caveat; rectification claims are distinct and must be pursued separately; accordingly the Court ordered registration of the easement and dismissed the caveat application.

Court Disposition

Application to sustain caveat dismissed; order for registration of the easement as per Schedule 3 of the 17 November 2011 agreement; costs awarded to the Cobbs on a 2B basis with disbursements

Orders

  • Caveat dismissed
  • Order that the McClures and their Trust register the easement in the form set out in Schedule 3 of the parties' agreement dated 17 November 2011