SINGH AND AND BOUCHIER v POTTERS PARK PROPERTY LTD [2014] NZHC 2392

SINGH AND AND BOUCHIER v POTTERS PARK PROPERTY LTD [2014] NZHC 2392 [1 October 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-004276[2014] NZHC 2392BETWEEN MAHENDRA SINGH AND GEOFFREYHUGH BOUCHIERPlaintiffsAND POTTERS PARK PROPERTY LIMITEDDefendantHearing: 8, 9 and 11 September 2012Counsel: D G Collecutt for PlaintiffsE St John for DefendantJudgment: 1 October 2014JUDGMENT OF FOGARTY JThis judgment was delivered by me on 1 October 2014at 4.30 p.m.,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors:Shean Singh, AucklandDG Law, AucklandIntroduction[1] The plaintiff and the defendant entered into a written agreement to create a right-of-way on 23 August 2010. The plaintiffs are defined in the agreement astrustees of the Shean Singh Family Trust (the Trust) and the defendant as "Potters".[2] The agreement is not long and, unusually, the whole of the agreement except the page of execution is attached to this judgment. This is for two practical reasons. The first is that the reasoning of this judgment necessitates frequent reference and comparison between specific elements of the clauses, which is most easily grasped by turning from the reasoning of this judgment from time to time to the agreement attached to the judgment.[3] The context of the agreement is set out at the outset:A. The Trust owns 506 Dominion Road, Mt Eden B. Potters owns 504 Dominion Road, Mt Eden C. The Trust wishes to develop the Trust property by way of extension to the rear of the existing building and the provision of additional car parking at the rear of the Trust property.D. Potters wishes to develop the Potters' property by constructing apharmacy and clinic, together with associated parking and access.E. For mutual benefit, the Trust and Potters have agreed to assist each other by the creation of a right-of-way and consents on terms and conditions set out below.[4] The agreement, however, makes no reference to the neighbour on the otherside of the Potters' property. This neighbouring property was a medical clinic. This property was generally referred to by the parties in the litigation as "the Doctors".The Doctors' property was located on the intersection of Dominion Road with Mt Pleasant Road.[5] Mt Pleasant Road is an arterial road in Auckland. Mt Pleasant Road is a local residential road off Dominion Road. Inevitably the Doctors, as well as the Trust and Potters, will use the same lane as part of the right-of-way.[6] The three properties are all zoned as residential, rendering the existing use ofthe Trust's property non-complying and similarly rendering the proposed use of Potters' property as a pharmacy and clinic.[7] The proposed uses being non-complying, it is common ground that the development of the pharmacy, Potters' property, and the extension of the Trustproperty, which is used as a law office, required or might require consent under the Resource Management Act 1991 (RMA).[8] Having set out the background, the agreement goes on to the agreed terms which are divided into four headings:(a) Interpretation(b) Consideration(c) Conditions(d) General provisions relating to easements.[9] Attached to the agreement and forming part of it were three additional pages. They are not numbered but are consecutively:(i) A page entitled "right-of-way drawing". The proposed right-of-way for the Trust is marked by a hatched area on the drawing on thePotters' land, adjacent to the proposed pharmacy and clinic building, not extending all the way out to Dominion Road. It starts approximately three metres before the front of the Trust's building andends adjacent to its backyard. The drawing obviously indicates that the proposed right-of-way facilitates cars coming off the Trust property, onto Potters' property, up a lane between the two propertiesand then leaving the lane, going into the backyard of the Trust property. As we will see, there is no dispute that this was intended to be for traffic movements both ways. The Trust's proposed right-of- way is superimposed on the common right-of-way serving the Doctors and Potters. That right-of-way shows on the right-hand-side the car parking behind the pharmacy and the Doctors and two arrows on the lane at the rear of the Potters property indicating a one-way line of traffic going down towards the cross-hatched area of the right-of-way.[10] The second and third attachments address Potters' RMA application for a resource consent, to be agreed to by the Trust.(ii) The second attachment gives a full picture of the parking for the Doctors and the pharmacy, to the rear of those buildings. Again, it will be noticed that, like the first attachment, the right-of-way arrows do not extend down the lane after it has turned 90o to pass between the proposed pharmacy and the Trust property out to Dominion Road.(iii) The third page shows the south elevation of the Potters' proposal. Thedrawing shows the ramp characteristics of the lane over which the cross-hatched right-of-way is placed. This is a downhill ramp out tothe road, between the Potters' and the Trust's buildings.[11] The agreement was signed on 23 August 2010. On the same day, the Trustconsented to the Potters' application.[12] It is also common ground that on the day of execution, the Trust had not sufficiently advanced its intentions to be in a position to lodge its application(s) tothe Council. Potters did not consent to the Trust's application until 2012. There is no suggestion that Potters delayed the consent. It simply was not proffered to Potters for consent until that date.The disputeThe Trust Claim[13] The Trust now sues Potters, seeking three remedies as follows:(a) An order that Potters specifically perform the terms of the right-of- way agreement and, in particular, register an easement instrument on the title of the Potters property.(b) An order that Potters remove the minor retaining wall along the boundary between the Potters property and the Trust property, reinstating the original ground levels and fix at its cost any damage caused to the right-of-way.(c) Pay by way of damages the loss suffered by the plaintiff as set out in the statement of claim.[14] Paragraph 22 of the statement of claim pleads:Without access to the ROW, the plaintiff has suffered loss. They had to make alternative arrangements to carry out the work on their property without using the ROW.22.1 Hiring a small digger to drag excavated material from the rear to the front of the Trust property at $345 plus GST per day.22.2 Hiring a bobcat and truck to cart excavated material from the rear to the truck at front for $140 plus GST per hour.[15] The sum is not calculated in the statement of claim but was proved at the trial to be in the order of $12,500. Paragraph 22 does not plead the particulars. The event, said to cause loss, was the consequence of the Trust receiving a trespass notice from Potters after the Trust allowed its contractor excavating the rear of the Trust property to park a very large truck on the lane adjacent to the rear of the property, blocking any exit to Dominion Road. This event took place on 16 September 2013.The Potters Counterclaim[16] By way of counterclaim, Potters seeks first a declaration that the right-of-way agreement is unenforceable or is otherwise at an end. Second, they seek an order removing the Trust's caveat. Removal of the caveat will enable them to register against the title the easement that they have between themselves and the doctors.The issues raised in the pleadings[17] The parties did not resolve the pleadings into issues. The Court's compilationof the issues, is made both from the pleadings and the argument:1. What were Potters' obligations as to right-of-way upon execution of the agreement?(a) Potters say it was under no obligations until the agreement became unconditional.(b) The Trust argues that when Potters lodged its resource consent application in August 2010, it was obliged to advise Auckland Council of the right-of-way agreement – particularly the agreement to two-way traffic on the cross-hatched area of the exit ramp. By not doing so it was deceptive and dishonest.2. Could the Trust waive condition 3(d), at a later date?(a) Potters answers in the negative, arguing that the time limit was for its benefit.(b) The Trust takes an affirmative position.3. Did Potters' obligation to consent to the Trust's right-of-way continue after the Trust decided not to have permanent car parking at the rear?(a) Potters contends that if there was an obligation, it ceased whenPotters consented to the Trust's application, which made no provision for car parking.(b) The Trust argues that Potters' obligation did continue, for fourreasons:(i) There is no requirement on the Trust to obtain Council consentto "the provision of additional car parking".(ii) Entitlement to the right-of-way included entitlement for purpose of occasional car parking, so minor an activity as not to need RMA consent.(iii) Condition 3(d) only required consent to be determined for construction of the extension to the building. No construction was required to make provision for additional car parking onthe grassed area at the rear of the Trust's property.(iv) Further, if there is any difference between the scope of works originally contemplated by condition 3(d) of the agreement, and the scope of the works contemplated after a variation in February 2012, then Potters, by signing the drawings produced by the Trust, agreed to vary the scope of the works (which depicted "new parking area – on gobe blocks") on or about 24 February 2012.The condition was varied to change the scope of the works, contemplated to coincide with the drawing and plans produced by the plaintiffs and signed by the defendant on or about 24 February 2012.4 Did Potters' obligations under the right-of-way agreement continue after 23 August 2012, i.e. two years after the execution of the agreement?(a) Potters denies this, saying it had complied with the only obligation it had, which was to consent to applications for a resource consentwithin the two year period.(b) The Trust contends Potters obligations did continue, as condition 3(d) had been waived, and during the life of the agreement Potters had breached the agreement by not informing the Auckland Council of its existence and purpose to protect two-way traffic adjacent to the Trust property. The Trust argues this conduct was deceptive and misleading.5. Was it a breach of the agreement by Potters to erect a minor retaining wall along the side of the ramp, blocking the plaintiffs' access?(a) Potters says there was no breach, as the Trust could build a ramp on its land.(b) The Trust takes the opposite stance.6. Is the Trust entitled to damages from Potters for the cost of having to hire a bobcat to remove soil from the rear of the property after Potters used a trespass notice?(a) Potters argues no, saying the trespass notice was justified by reason of the Trust's contractors blocking the Doctors' and Porters' right-of-way with a large truck.(b) The Trust seeks damages, saying it was entitled to use the Right-of- way by way of an equitable estate, pending acquiring title under the Land Transfer Act 1952.The relevant interpretation principles[18] There is no significant dispute as to any matter of fact in this case. After the agreement was entered into, the parties tended to communicate by email. So, there is no dispute as to the exchanges between the parties and the dates of the exchanges. There are no credibility issues.[19] This hearing thereafter proceeded on the basis that the meaning and effect of the right-of-way agreement has to be construed objectively: by examination of its terms and attachments; by taking into account the context both included in theagreement under "Background" and otherwise known to the parties at the time; and by consideration being given to the fact that on the day of execution of thisagreement, the Trust consented to Potters' RMA application.1. What were Potters' obligations as to right-of-way upon execution of the agreement?[20] Mr Collecutt, for the Trust, argued that properly construed, condition 3(a)(Potters' application) and general provision 4(d) imposed on Potters an implied obligation to make its RMA application to the Council for consents in such a way so as to not bring about a state of affairs that made it impossible for the Trust to satisfy condition 3(d). In my view this submission is the crux of the case.[21] It is common ground that the application by Potters, consented to by the Trust on the same day as the agreement was executed, and attached to the agreement, did not expressly provide for two-way traffic down the lane, other than there being no arrow marks indicating one-way traffic only.[22] Notwithstanding the absence of arrows, as filed Potters' resource consentprovided for one-way traffic flow from Mt Pleasant Road, as the ingress point, to Dominion Road, as the egress point, and there was no provision in that consent for two-way traffic over the cross-hatched area of the drawing. As already noted, the Trust consented to that application on the same day as it executed the right-of-way agreement.[23] It is important to keep in mind that at the time the agreement was signed the Trust had not formulated the scope of its project, which formulation would likely to have driven the number of extra car parks it would be required by the Council to provide.[24] Had Potters had to disclose the existence of the right-of-way agreement with the Trust to the Council, it would have likely led to questions from Council officersas to what was likely to be applied for by the Trust. It is likely that that disclosure would have delayed the Council's processing of Potters' application.[25] The context reveals, confirmed by Recital E of the "Background", that one of the two purposes of entering into this agreement was for both parties to have their resource management applications and building consents facilitated and sped up by reason of acquiring the consents of their neighbours. This is a commonplace occurrence in New Zealand. Consent of neighbours can obviate the need for a notified application. In that context the common goal of the parties, reflected by provisions for mutual consents in conditions 3(a) (Potters) and 3(d) (the Trust), is to minimise, not raise, any problems obtaining Council consents.[26] The one-way arrows do not appear on the exit ramp in Potters' plans. That appears to be the only acknowledgement of the need for two-way traffic on the ramp. Given the context reveals the parties to the agreement knew the Trust's right-of-way was to be two-way, it is striking that the achievement of such a goal was not particularly expressed. For example, which party – the Trust or Potters – would apply later for Council consent? The expert, Mr Deeney, confirmed that Council consent is required before a right-of-way of this sort can be registered under the Land Transfer Act. Under the RMA either the Potters or the Trust could apply for consent.[27] To park cars at the rear of the Trust property, the cars had to come from either Mt Pleasant Road or Dominion Road. The context also shows that it was obvious that one way traffic would be the most efficient. The Court can also take judicial notice that the Council would favour one-way traffic, as it reduced traffic movements off Dominion Road, an arterial road, by mandating use of Mt Pleasant Road.[28] The context also reveals that the Doctors had as much of an interest in the right-of-way as did Potters. Yet the Doctors are not parties to this agreement. There is nothing in the context, or in the agreement, to suggest or infer that Potters would have had the ability to require the Doctors to consent to the Trust's right-of-way.[29] This agreement did not expressly require Potters to obtain such a right-of- way for the Trust. Nor did it require Potters to notify the Council that an application will be made for a right-of-way in the future. Making provision would be tantamount to applying for consent.[30] For Potters, Mr St John argued the agreement deferred any obligation onPotters to assist in the creation of the Trust's right-of-way. The principal argument in rebuttal advanced by Mr St John was that the "conditions" in cl 3 of the agreement is a set of preconditions which must be satisfied before the "general provisions" in cl 4 come into effect. Mr St John also argued hat when the agreement was signed in August 2010, the Trust was in no position to lodge its applications referred to in cl 3(d), and was not for some years later. Mr St John argued that until pre-condition 3(d) matured, any obligations on Potters to co-operate in obtaining the Trust's right- of-way in cl 4 did not engage. Therefore, Potters had no obligation to apply to the Council in 2010 for two-way traffic on the ramp, over the cross-hatched area, in favour of Potters. There is no doubt there is no express obligation in cl 3 and cl 4(d) does not spell out respective tasks.[31] The Trust's argument that Potters should have notified the Council of the existence of their right-of-way agreement with the Trust depends on persuading the Court that this obligation should be implied or that it is expressed in condition 4(d).[32] I am satisfied that it is clear from the terms of the agreement that cl 3 is a set of preconditions. The traditional phrase, "This agreement is conditional upon" isused as the preface to each paragraph in cl 3. Therefore the obligations, particularlyin cl 4(d) "to do all things necessary to obtain the lot and the easement interest", did not apply to Potters in respect of the Trust until all the conditions in cl 3 had been satisfied.[33] Therefore such an obligation has to be inferred from cl 3, and particularly 3(d). Such an implication has to be necessary or inevitable. Mr Collecutt, for the plaintiffs, has selected three cases relevant to the issues in this case. He relies onFirestone Tire & Rubber Co of NZ Ltd v Harvard Construction Ltd where it was held: 1 a party to a contract will be able to rely upon failure of the condition only if he was under no obligation to achieve fulfilment of the condition or if the condition failed despite sufficient endeavours on his part to achieve fulfilment. A party will not be allowed to assert that he is excused from contractual liability because of the failure of a condition which has only failed through his own default. It will be a matter of construction to determine whether the condition is one which causes an obligation to seek fulfilment to fall on both parties or on one only. Although the point does not seem to have been expressly decided, it is suggested that if the contract makes no specific provision on this point, the obligation to seek to achieve fulfilment falls on the party who obtains some benefit under the condition, orequally on both parties if both would acquire a benefit. party will disqualify himself from relying on the condition if he has brought the state of affairs about by his own default. The rule that a party cannot take advantage of his own wrong is fundamental. [Where] it appears that both parties have agreed that something shall be done, which cannot effectually be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carrying out of that thing, though there may be no express words to that effect. What is the part of each must depend on [the] circumstances.[34] In Southern Foundries (1926) Ltd v Shirlaw,2 the question in the case was whether Southern Foundries had broken their contract with Shirlaw when dismissing him as managing director. Another company, Federated Farmers, had taken over Southern Foundries and changed the articles allowing any two directors and the secretary to remove any director of the company, and exercised that power to remove Shirlaw.[35] In his speech, Lord Atkins said:I feel no doubt that the true construction of the agreement is that the company agreed to employ the respondent and the respondent agreed toserve the company as managing director for the period of ten years. Thusthe contract of employment for the term of ten years was dependent upon the managing director continuing to be a director. This continuance of directorship was a concurrent condition. The arrangement between the parties appears to me to be exactly described by the words of Cockburn CJ in Stirling v Maitland:31 Firestone Tire & Rubber Co of NZ Ltd v Harvard Construction Ltd (1997) 3 NZ ConvC 192,667 (HC) at 192,671 – 672.2 Southern Foundries (1926) Ltd v Shirlaw [1940] AC 701 (HL).3 Stirling v Maitland (1864) 5 B & S 840 (QB), at 852."If a party enters into an arrangement which can only take effect bythe continuance of an existing state of circumstances"; and in such a state of things the Lord Chief Justice said: "I look on the law to be that there is an implied engagement on his part that he shall donothing of his own motion to put an end to that state of circumstances, under which alone the arrangement can beoperative".[36] Lord Atkin went on:That proposition in my opinion is well established law. Personally I should not so much base the law on an implied term, as on a positive rule of the law of contract that conduct of either promise or promise which can be said toamount to himself "on his own motion" bringing about the impossibility ofperformance is in itself a breach. (Emphasis added.)[37] Either test is not met. It is plain, and expressed in Recital E, that there was a mutual self-interest, between Potters and the Trust for their separate developments not to be publicly notified for consent. Each neighbour would consent to the other's applications. That was the core of the bargain. Potters' applications were ready to go. The RMA application was consented to by the Trust on the same day. The detailed design had been done as shown by the attachments. In the nature of things, the building permit application would come later. The Trust's application orapplications was not in the same state of readiness, where it could be consented to by Potters on the same day. Had the Trust's application also been ready to go, in conflict with the right-of-way design in Potters' application, the terms of the agreement would not have been the same.[38] It must have been plain to the parties when they signed the agreement, that the provision of countervailing traffic on the exit lane would be a major problem in the way of the Trust acquiring RMA consent to a right-of-way over the lane to enable cars to be driven from the front part of the Trust property to the rear. In the absence of an express term as to who should bear this risk, there is no necessary implication that it was being assumed by Potters.[39] For these reasons, it is not possible to imply additional obligations on Potters from the express terms of the right-of-way agreement. Rather, I think the agreement reflects what the parties were able to agree and no more, as at 23 August 2010. The terms have been carefully chosen. It is in that respect a sophisticated agreement.But its contents cannot hide the awkward fact that in respect of the right-of-way it is a rather lame instrument. The Doctors are not a party to it. Yet their agreement or disagreement was likely to be fateful for the course of the Trust's application for aright-of-way in due course. Second, it is both a matter of law and fact that local authorities endeavour to maintain the level of traffic service or quality on roads and for that reason RMA plans and decision making processes address and examine carefully activities which generate traffic movements including vehicles moving onto and off roads, particularly arterial roads.[40] For these reasons, in the context of this agreement, I do not find anywhere in the agreement an obligation on the part of Potters to have made or to make an application on behalf of the Trust for two-way traffic on the lane taking the cars from the Doctors and the pharmacy out to Dominion Road. It follows, I do not find that the application that Potters lodged, consented to by the Trust on the very day of signing this agreement, was inconsistent with the obligations assumed by this right- of-way agreement.[41] This finding is sufficient to resolve all the issues in this case in favour of the defendant. However, I go on to resolve the other pleaded issues.2. Could the Trust waive condition 3(d) at a later date?[42] I turn to the argument that condition 3(d) was solely for the benefit of the Trust. This was disputed by Mr St John who, as already noted, argued that all of the conditions in cl 3 are conditions prior to the obligations which subsequent arise under cl 4. Thus it was to the advantage of Potters that the Trust had to get its consents within 24 months from the date of the agreement. If it did not, then Potters was released from obligations to provide the awkward right-of-way. I agree.[43] I distinguish the authority relied on by Mr Collecutt of Newton v Angus.4 The respondent Angus owned a business called Plumbing World and the appellants owned adjoining land. The appellants intended to develop their site with a new building. The parties agreed that Plumbing World would purchase from the4 Newton v Angus HC Dunedin AP2/02, 6 August 2002.appellants a 96 square metre strip of land for parking space, together with a right-of- way. This agreement led to numerous disputes which were first considered by the District Court. The decision relied upon by the Trust in this case is the decision of the High Court on appeal. Special condition 16 of the agreement provided:The vendor and purchaser agree to take all steps and sign all documents necessary to obtain the depositing of a planned subdivision in the form annexed hereto.[44] John Hansen J found:[49] In my view, that clause is wide enough, and does assume, that resource consent will be obtained in the form necessary to complete the agreement, and, therefore, no issue of an implied term arises. In this clause both parties assumed an obligation to take all necessary steps to obtain deposition, and, in my view, this extends to taking all steps necessary toobtain resource consent [45] Applying this precedent, Mr Collecutt argued that condition 4(d) was to the same effect. It provides:Each party, at their own cost, will do all things necessary to enable lodgement of an Easement Instrument recording the terms of this agreement.[46] I agree with Mr St John's argument that this condition only applies when theconditions prior contained in cl 3 have been satisfied.3. Did Potters' obligation to consent to the Trust's right-of-way continue after the Trust decided not to have permanent car parking at the rear?[47] The parties agree that the Trust's intention of permanent car parking at therear of the property, Recital C, was abandoned after the execution of this agreement.From about 16 August 2011, Mr Singh's intention was to occasionally take vehicles to the rear of the property and, for that purpose, was of the opinion that intermittent and occasional use did not require RMA consent.[48] Mr Collecutt argued that notwithstanding this change of intent from that prevailing at the time of the execution of the agreement, Potters was still obliged to create the right-of-way to provide for the lesser use of occasional car parking at therear of the property. He submitted "the greater includes the lesser".[49] Clause 3(d) provides:This agreement is conditional upon the Trust obtaining consent from the territorial authority for compliance of existing use (if any) and construction of works referred to in Recital C, such consent to be obtained with 24 months of the date of this agreement.[50] It is impossible to understand condition (d) without keeping in mind the content of Recital C. Recital C provides:The Trust wishes to develop the Trust property by way of extension to the rear of the existing building and the provision of additional car parking at the rear of the Trust property.[51] There is nothing in Recital C which suggests that it was the provision of an occasional parking of a car at the rear of the Trust property, which would not require RMA consent. In the context it is referring to daily parking at the rear.[52] The parties to the agreement knew that the Trust building was being used as law offices, a non-complying activity. That knowledge is reflected in the second line of condition 3(d) referring to "existing use". "Authority for compliance of existinguse" is a clumsy phrase, not RMA jargon. It seems to be a shorthand for a consent to continue a non-complying use, in the context of expanding the use.[53] The words "(if any)" reflect a qualification as to the need for RMA consent, given that the proposed extension may be found to be within the Trust's existing use rights. But, in any event, the Council would have to grant a permit to construct the extension.[54] The enlarging of the law firm's residential property to expand the physical size of the law practice was itself going to generate an inevitable risk of a requirement for additional car parking to be provided on the site. Recital C reflects an anticipation at that time by the Trust that the additional car parking, or at least some of it, would be provided at the rear of the Trust property. The natural meaning of that provision of additional car parking is permanent car parking, when Recital C is read with condition 3(d) because condition 3(d) contains the assumptions of the need for consent from the territorial authority which are not developed in Recital C.[55] I accept the expert opinion of Mr Deeney that an impermeable surface for car parks would have had to be constructed at the rear of the building. And that because of the presence already of an impermeable forecourt, the construction of such a surface at the rear would require RMA consent. So the construction of works referred to in cl 3(d) includes the construction of car parks. Recital C and the absence of any plans on the part of the Trust confirm that at the time the agreement was entered into, the provision of additional car parking was identified as needed, but not how many. Further, that provision of additional car parking would require a consent. If not, there would have been no need to refer in Recital C to the provision of additional car parking. Therefore, the proper interpretation of the reference to Recital C in 3(d) is it was anticipated by the parties that the provision of additional car parking to the rear of the Trust property was of a kind that required the Trust to get Council consent.[56] The concept that the greater includes the lesser is, at best, an interpretation guideline. Its application always depends on the context. There is no basis in this context, at the time of 23 August 2010, to interpret Recital C as including the possibility of minimal car parking at the rear of the Trust property, so minimal that it did not require any Council consent. Clause 3(d) presumes consent is needed for the car parking at the rear.[57] The context also reveals that it is because of what was seen as an inevitable or very likely requirement for the provision of additional permanent car parking to the rear of the property that drove the need for a right-of-way to benefit the Trust. When the Trust abandoned that objective in August 2011, cooperation from Potters was no longer required.4 Did Potters' obligations under the right-of-way agreement continue after 23 August 2012, i.e. two years after the execution of the agreement?[58] This issue has been resolved by my findings in paragraphs [39], [40] and [57] above. The following are supporting reasons, examining whether in fact Potters frustrated the Trust obtaining a right-of-way.[59] From 23 August 2010, the Trust had two years to lodge its applications, to which Potters were obliged to consent. It was open to the parties to negotiate and agree in writing a variation of that time or to record an agreement in writing.[60] In the period November to December 2011, Potters offered the Trust an extension of time by which it would need to obtain its consents from the Council if it so needed. Potters repeatedly warned the Trust that it was unlikely that the Trust could get a two-way right-of-way.[61] From about 27 October 2011 Mr Kelly had been advising Mr Singh that he had received legal advice that the right-of-way agreement between Potters and the Trust would not become unconditional because of the conditions the Council had puton the Potters' resource consent, "the fact that Council has specifically prohibited traffic going 'up' up the driveway".[62] In similar vein Mr Kelly told Mr Singh on 1 November that he considered the agreement had become null and void because of this requirement. But Potters never refused any request for a consent.[63] On 3 November Mr Singh had replied:Let's do one thing at a time. I need the consent for my development whichwill not require me to go to the back on my property. According there's noissue as far as Council is concerned that re either your development or mine.[64] On 10 November 2011, Potters consented to infringement of the height in relation to boundary rule showing on two drawings (which showed no parking anywhere on the Trust site).[65] On 8 February 2012, GM Design on behalf of the Trust, wrote to Potters advising:On behalf of your neighbours, Shean Singh, will be applying for Resource Consent to develop the adjoining site. As owners of an adjacent property it could be affected by this development, we need to inform you that the proposal breaches the Operative District Plan as it infringes the height inrelation to your boundary and for this your approval is required.I have attached a copy of the concept design for the adjacent dwelling showing the areas where it breaches the height in relation to the boundary recession plan.[66] The attachment showed the house and this drawing showed at the rear provision for a new parking area on gobe blocks. On 24 February 2012, Mr Kelly, for Potters, agreed to the breach of height.[67] In July 2012, the Council granted consent for a right-of-way easement between Potters and the Doctors. About a fortnight later, the Trust lodged a caveat over Potters property preventing the right-of-way being satisfied.[68] On 31 August 2012, a week after 23 August, Potters advised the Trust the right-of-way agreement was at an end.[69] The Trust always had the power under the RMA to apply for a right-of-way on Potters' land to access the rear of the Trust property. No application has been made.[70] I find that there was no breach by Potters of the right-of-way agreement in those two years from 23 August 2010 to 23 August 2012. By the end of that period, the Trust had not obtained resource consent for car parking to the rear of its building.[71] The advice by Potters to the Trust on 31 August 2012 that the right-of-way agreement was at an end was correct.[72] It follows that the plaintiff is not entitled to a degree of specific performance as there is no obligation left for Potters to perform.5 Was it a breach of the agreement by Potters to erect a minor retaining wall along the side of the ramp blocking the plaintiffs' access?[73] Potters constructed the ramp which can be seen on the second attachment enabling exit of cars to Dominion Road. The ramp was not constructed so as to have an on-ramp from the front of the Trust sealed forecourt. At the point at which cars would leave the forecourt of the Trust property to go onto the right-of-way the ramp is not particularly high above the forecourt, but would need the construction of anadditional on-ramp. Part of the Trust's complaint appears to be that when constructing the ramp Potters did not take full advantage of the historic fact that the sloping land in that vicinity had originally included some of Potters' land. The rampwas held up on the boundary with the Trust property by a retaining wall.[74] At the rear there was a significant height drop between the sealed right-of- way servicing the Doctors and Potters, and the base of the rear of the Trust property. That base had been excavated in order to lower the height of the extension of the Trust property in order to obtain the approval of the neighbour of the Trust property on the far side. The construction of the Doctors/Potters' ramp, by the Potters on itsland, was not in breach of the agreement because of the findings this Court has made. There was no obligation prior to the agreement becoming unconditional for the ramp to be constructed in a way which anticipated the ultimate grant by the Council of consents necessary to establish a right-of-way serving the Trust property on Potters' land. This claim fails.The damages claims[75] I turn then to the claim for damages which arose within the two-year period following upon 23 August 2010.[76] This argument essentially proceeds on the footing that upon the execution of the right-of-way agreement, the Trust had an equitable right-of-way which it could exercise prior to its perfection as a registered easement over Potters' land.[77] Whether or not there was such an equitable easement again depends on the context. We know from the context that the right-of-way agreement was executed onthe same day that the application for Potters' resource consent was consented to. As already discussed it is plain from the right-of-way agreement that the parties to it knew that the flow of traffic was at that time going to be one-way down the ramp and out to Dominion Road. It is equally plain that the parties must have known that traffic in the opposite direction, even if relatively rare, potentially caused significant problems – congestion, obstruction and possibly accident. There was no evidence it was possible for two cars to pass each other. From the material before the Court, I infer there was not. For any informal use of the right-of-way in this manner, at thevery least traffic control arrangements would have to be made to prevent cars descending the ramp at a time when a car might want to leave the Trust property, go onto Potters' ramp, before egressing onto the rear of the Trust property.[78] It is commonplace in Auckland and elsewhere in the world for informal arrangements to be made to cross a neighbour's land during the course ofconstruction. It is a neighbourly thing to facilitate, often in a context where the need is likely to be reciprocal. Normally, these arrangements are entered into whereby the party being given the privilege to cross the land has to accommodate the normal day- to-day requirements.[79] In this case, there were discussions, as one would expect, between the Trust and the Doctors to bring a large digger off Mt Pleasant Road to the back of the Trust property. This need had not been expected on 23 August. It arose because, in turn, the Trust wanted the property on the other side of it to consent to Potters, in order to facilitate its application, and as a condition of granting consent, that neighbour required excavation of the rear of the Trust property in order to minimise the total height relative to the neighbour of the extension of the building on the Trust property. The movement of the digger onto the site was not a wholly satisfactory exercise. The relationship between the Doctors, Potters and the Trust was further exacerbated when the Trust arranged for a very large truck to be parked at the top of the ramp from where it was to be loaded with soil from the rear of the Trust property. It was this incident which caused Potters to issue a trespass notice and forced the Trust to remove soil excavated at the rear of the property by way of bobcat to the front of the Trust property, from which it could be loaded onto a truck and taken away.[80] This extra cost is claimed to have been incurred by the Trust because of breach of the right-of-way agreement. That is not the case. There is nothing in the context of the right-of-way agreement or in the text which allowed immediate exercise of the promise of a right-of-way. The facts were against it. The parties knew when signing the agreement that at least until the Trust acquired its resource consent and its approval from the Council of two-way traffic on the right-of-way, that the traffic on the right-of-way would be one-way, out to Dominion Road. Theuse of the right-of-way was never going to be a matter just between the Trust and Potters. It was always going to include the consent of the Doctors, and ultimately always going to include the need to obtain the consent of the Council as the consent authority under the RMA, unless the use was de minimus. The prospect of minimal use was not contained within the right-of-way agreement, as I have found above. Therefore, on those facts there is no argument to justify unilateral use of the ramp, let alone to try to justify the parking of a truck obstructing the right-of-way. The application for damages fails.Conclusion[81] The result is that the claim by the Trust of specific performance and damages fails. The claim of specific performance was the claim standing in the way of an order setting aside the Trust caveat against Potters' property. As a consequence of these findings on the Trust cause of action, it follows that the defendant is entitled to its remedy by way of counterclaim:(a) There is a declaration that the right-of-way agreement is unenforceable.(b) An order that caveat number 9136703.1 be removed from title 542914.[82] Potters is entitled to costs on a 2B basis. If the parties cannot agree costs, I will receive submissions limited to five pages each, exchanged in draft in advance.