LINDSAY v NOBLE INVESTMENTS LIMITED [2014] NZHC 799

LINDSAY v NOBLE INVESTMENTS LIMITED [2014] NZHC 799 [16 April 2014]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2013-409-001234[2014] NZHC 799BETWEEN STUART ELLESMERE LINDSAY andJULIE IVONNE LINDSAYApplicantsAND NOBLE INVESTMENTS LIMITEDRespondentHearing: 14 February 2014Additional Submission: 18 March 2014 and 24 March 2014Appearances: A J Forbes QC (14 February 2014) andA C Hughes-Johnson QC (additional submissions)for ApplicantsS M Dwight for RespondentJudgment: 16 April 2014JUDGMENT OF ASSOCIATE JUDGE OSBORNEas to application for orders that caveat not lapseThe application[1] This proceeding concerns land in a subdivision undertaken by the respondent (Noble) at Yaldhurst Road, Christchurch, originally to be known as Noble Gardens but now Noble Village.The contract[2] By an agreement for sale and purchase entered into on 11 February 2002 (the agreement), the applicants (the Lindsays) purchased:the proposed Lot 4; anda one-tenth share in the proposed Lot 22, andthe proposed Lot 15 which was to be later transferred back to Noble.Settlement of the agreement occurred on 14 October 2003.[3] Schedule 1 to this judgment is the plan of initial subdivision as attached to the agreement. Lot 4 is in the centre of the plan, Lot 15 to its east, and Lot 22 is a thin strip which runs both east-west, and also then north-south, connecting withYaldhurst Road in the north. Lot 22 is defined in the agreement to be the "Access Lot". In this judgment I call the two parts of Lot 22 "Lot 22 east-west" and "Lot 22north-south" respectively.[4] For the purposes of later discussion, Schedule 2 of this judgment is a plan of a broader subdivision plan as Noble has since developed it. The lots to which the agreement relates remain in Schedule 2 as numbered originally (4, 15, 22). The (Schedule 2) plan also shows what has become known as the "spine road" runningmore or less north-south through the subdivision. It also shows two small lots which had the effect of connecting Lot 22 to the spine road (the two Lots there being Lot 504 and 510, but now described by Noble as Roads 2 and 9).[5] The agreement contained provisions as to roading and services. There was initially some confusion and misstatement of the roading and services provisions of the agreement. I return to these matters below at [20].[6] Residential zoning including for Lot 4 was granted on 21 August 2006 and the subdivision application was approved by the Christchurch City Council on 25 May 2009. Pursuant to terms of the agreement, the Lindsays then transferred Lot 15 back to Noble. Noble has undertaken residential subdivision work in adjoining areas of the development.The dispute[7] The Lindsays came to consider that Noble had failed to fulfil its obligations under the agreement. On 9 November 2012 they lodged a caveat to protect rightsunder the agreement the wording of which is set out below at [19]. The caveat was lodged against the titles to Lots 11 – 18 in the subdivision (all owned by Noble).[8] On 12 November 2012, the Lindsays' solicitors wrote to Noble's solicitors.The letter alleged breaches of Noble's obligations. It proposed that Noble have areasonable opportunity to reconsider its position and, if appropriate, to discuss the matter further. The letter did not refer to the lodging of the caveat. It indicated that failing a successful discussion, the Lindsays would be filing a proceeding to enforce their rights. There were subsequently unsuccessful negotiations between the parties.[9] On 10 June 2013, Noble initiated the caveat lapsing procedures under s 145A Land Transfer Act 1952.Parallels with Philpott v Noble Investments Ltd[10] To this point of the background, there is a close parallel between the events leading to this proceeding and those the subject matter of the Court's earlierdecisions in Philpott v Noble Investments Ltd.1 Those cases similarly involved applications for orders that caveats not lapse. The applicants in Philpott also enteredinto an agreement with Noble in 2002. They were purchasing proposed Lot 9 (together with other interests in the proposed subdivision).[11] In many ways the background to this and the Philpott cases overlap. But in some areas, such as the material contractual terms, and in the case of Philpott a variation of contract, the cases diverge. The judgments which I gave in the Philpottcases are subject to appeal.2The principles as to the lapsing of caveats[12] Counsel accepted that core principles applicable to the caveator's applicationthat a caveat not lapse were as set out in my first judgment in Philpott.3[13] The applicable principles are:1 Philpott v Noble Investments Ltd [2012] NZHC 1431 and [2013] NZHC 400.2 Leave to appeal granted in Philpott v Noble Investments Ltd [2013] NZCA 379.3 Philpott v Noble Investments Ltd [2012] NZHC 1431 at [36].(a) The burden of establishing that the applicant has a reasonably arguable case for the interest claimed is upon the caveator;(b) The caveator must show an entitlement to, or beneficial interest in, the estate referred to in the caveat by virtue of an unregistered agreement or an instrument or transmission, or of any trust expressed or implied: s 137 Land Transfer Act 1952;(c) The summary procedure involved in an application of this nature is wholly unsuitable for the determination of disputed questions of fact; an order for removal of the caveat will not be made unless it is clear that the caveat cannot be maintained either because there was no valid ground for lodging it or that such valid ground as then existed no longer does so;(d) When an applicant has discharged the burden upon the applicant, there remains a discretion as to whether to remove the caveat, which will be exercised cautiously;(e) The Court has jurisdiction to impose conditions when making orders.[14] For the Lindsays, Mr Forbes QC submitted that there is a line of authoritiesthat establishes that a caveat may protect the caveator's right to prevent theregistered proprietor (who was the vendor of land) from dealing with the registeredproprietor's remaining land inconsistently with the contract between the registered proprietor and the caveator (in this context, an agreement for sale and purchase). Mr Forbes submitted that that line of cases, applying particularly to the purchase of land in a subdivision, at least arguably applies in the present case. By reason of other conclusions I reach, I do not need to determine exactly what that line of cases establishes.Issues of mixed fact and law[15] The parties differ as to the scope of Noble's contractual obligations (to beapproached in this caveat jurisdiction on the basis of what is reasonably arguable).[16] The Lindsays rely on a number of obligations which they say Noble had, namely:(a) under the agreement and associated correspondence, to provide stormwater services;(b) under Special Condition 19.2, to provide a carriageway;(c) under Special Condition 23, to have Lot 22 vested in the Council;(d) under the agreement as a whole, to provide the Council a secured route for roading and other services.[17] The Lindsays assert that the full terms of the contract between the parties are not defined solely by the agreement but are also to be derived from correspondencebetween the Lindsays' solicitors and Noble's solicitors on 6 and 7 March 2002 (the2002 correspondence).Admissibility of evidence[18] For Noble, Ms Dwight objected to three categories of material included in theLindsays' evidence. It was accepted by counsel for the purposes of my hearing thatall the evidence would be provisionally admitted and I would formally rule on admissibility in this judgment. I now do so with reference to the three categories of statements.(a) Statements as to Christchurch City Council requirements.Mr Lindsay makes a number of statements as to Council requirements. For instance, he deposes:The CCC requires that approved provision for stormwater discharge from Lot 4 is providedThere is no proper evidential foundation for such statements, there being neither a document of the Council evidencing the requirement nor evidence from someone who deposes to direct knowledge of Council requirements. I have therefore disregarded such evidence as inadmissible.(b) Statements as to the views of other landowners.This is an application by the Lindsays only. They do not purport to represent others. Nor does Mr Lindsay state that he has authority to depose on behalf of anyone other than Mrs Lindsay. Ms Dwight objects to statements as to the views of other landowners. There is noproper foundation for the admission of Mr Lindsay's statements as tothe views of others. I therefore disregard such evidence as inadmissible.(c) Affidavits filed in other proceedings.Ms Dwight objected to the reading of passages from affidavits filed in other proceedings. Mr Lindsay had referred to affidavits filed in thePhilpott case. One example is reference which Mr Lindsay makes to evidence with reference to stormwater given by a surveyor, Richard Graham, of Cardno (NZ) Ltd in the Philpott proceedings. Given that the stormwater arrangements arise as an issue in this case, it is appropriate that the Lindsays have leave to refer to what has previously been stated on behalf of Noble in relation to the issues now before the Court. By the helpful device of having Mr Lindsay in his affidavit evidence refer to the particular passages of earlier evidence on which he placed reliance, the Lindsays put Noble on notice as to matters which might call for reply. Noble was in a position to seek to file additional reply evidence if it saw fit. I regard as admissible evidence the passages in affidavits filed in the Philpott proceedings as identified by the Lindsays. (As it happens, by reason of the findings which follow in relation to stormwater, I have not found the earlier affidavit statements to be of material assistance).The estate or interest claimed in the caveat.[19] In their caveat, the Lindsays claimed an estate or interest as follows:Pursuant to an Agreement for Sale and Purchase dated 11 February 2002 whereby the registered proprietor agreed to provide services for sewer, stormwater, water supply, power and telecommunications for the benefit of the land owned by the Caveators in (now) Identifier 442736 and which ofnecessity may require the registration of easements by the registeredproprietor as Grantor over parts of the registered proprietor's land inIdentifiers 440795 to 440802 (inclusive) in favour of the Caveators land in Identifier 442736 and which agreement also provided for the registered proprietor to vest parts of the land in Identifiers 440795 to 440802 (inclusive) as road for the benefit of the Caveators land in Identifier 442736.The special conditions of the agreement[20] The agreement between the Lindsays and Noble, dated 11 February 2002, is contained on the REINZ/ADLS form,4 with two "Further Terms of Sale" (numbered 14 and 15) and 12 "Special Conditions of Sale" (numbered 16 to 27).[21] By Further Term of Sale 14 the agreement was conditional upon theLindsays' sale of their own property becoming unconditional.[22] Further Term of Sale 15 simply incorporated the 12 "Special Conditions of Sale" which followed, by stating:Subject to special conditions of sale (ref T3480) attached.[23] I will return to what the Special Conditions of Sale provide.[24] Mr Lindsay through his initial affidavit introduced a confusion as to the terms of the agreement. He stated:Agreement to grant easement relating to services10. The special conditions of the sale agreement contained, inter alia, the following further term:15. In the event a further subdivision is approved and work undertaken for residential subdivision by the Vendor on the adjoining development then the Vendor undertakes to provide full width roading to LIA zoning standard at its cost, together with sewer, power, telephone, water and stormwaterconnection for this zone's standard to Lot 4. This work is tobe completed within TWO YEARS of residential zoning being granted or when development of the Vendors (sic) adjoining land is undertaken, whichever comes first(further term 15).4 7th edition (2) July 1999.[25] Mr Lindsay then deposed as to the existence of a Further Term 14. He stated:15. Further term 15 also needs to be read in light of further term 14 under which Noble agreed to use best endeavours to obtain LIA zoning for Lot 4 (residential development rights) to at least the same standards as what was obtained by Noble for any other lot in thesubdivision and, as well, in the light of the solicitors'correspondence.[26] The Lindsays now accept that Mr Lindsay's evidence as to special conditions 14 and 15 was incorrect. The "Further Terms of Sale" 14 and 15, as they arecontained in the agreement, are as I have referred to them above [21] and [22].[27] When Noble filed its opposition, Justin Prain (Noble's development manager) identified Mr Lindsay's error in relation to Further Terms 14 and 15. Mr Prain alsodeposed that (notwithstanding Mr Lindsay's inclusion of a heading relating to "Agreement to grant easements relating to services") the agreement did not imposeon Noble an obligation to grant easements to the Lindsays.[28] In his second affidavit, in which he accepted his mistake, Mr Lindsay explained that what he had referred to as Special Conditions 14 and 15 were in factfurther terms included in some other purchasers' agreements (but not in the Lindsays' agreement).StormwaterThe terms of the agreement as to services[29] The Lindsays' application was commenced on the basis of the incorrectstatement in Mr Lindsay's first affidavit as to Special Condition 15 (above at [25])by which he asserted that Noble undertook to provide stormwater connection to Lot 4.[30] The Special Conditions which were in fact incorporated into the agreementdid not define "services" to include stormwater services.[31] Special Condition 16 is a definition clause and provides:"Services" means power, telecommunications, water supply, sewer and the carriageway contained within the Access Lot.("Access Lot" is defined as meaning Lot 22 in the proposed subdivision)[32] The provision of services is dealt with in Special Condition 19 which provides:19 SERVICESPrior to the settlement date and in accordance with the Initial Subdivision:19.1 The Vendor will arrange for power and telecommunications services to be available at a service point stipulated by the Purchaser on the boundary between the IndicativePurchaser's Property, (as shown on the plan attached to theDeed of Option) and Lot 22 of the Plan of Proposed Subdivision. There will be no overhead power or telecommunications lines on any Indicative Purchasers Property (as shown on the plan attached to the Deed of Option).19.2 The Vendor will construct a sealed vehicle carriageway at least 4.5 metres wide within the Access Lot. The width and standard of formation of this carriageway will be that currently required for a private accessway, but with the intention (without providing any warranty as to future local authority requirements) that, to the extent of its formation, it will be of a quality capable, following widening and the completion of any additional construction and service requirements of the Relevant Authority, of being vested in the Relevant Authority as legal road.19.3 The Vendor will provide connection to the Christchurch City Council water supply and will provide such additional wateras is necessary to irrigate the Indicative Purchaser's Propertythrough connection to the existing well located on Lot 10 of the Plan of Proposed Subdivision.19.4 The Vendor will install and meet the cost of a connection to a communal sewerage system approved by the Relevant Authority and located on Noble, or alternatively will provide an on site sewerage disposal unit also approved by the Relevant Authority, at the Vendors (sic) discretion.19.5 All Services to be provided by the Vendor in accordance with this clause 19 shall be constructed in accordance with the conditions of the Consent to Initial Subdivision and to the standards required by the Relevant Authority.[33] In other words, Special Condition 19 provided for the following:19.1 – power and telecommunications;19.2 – formation of the Access Lot;19.3 – water supply;19.4 – sewage;19.5 – compliance with Consent conditions.[34] These provisions may be contrasted with the provisions within the contract which the Court dealt with in Philpott v Noble Investments Ltd.5 In the Philpotts'case the agreement contained Further Term of Sale 15 in the precise terms which Mr Lindsay (initially) incorrectly asserted his contract contained (above at [24]). Because of the unresolved arrangements for stormwater drainage at the time of thePhilpott litigation, the contractual provisions as to stormwater in that case assumed importance in the Court's judgments.The 2002 correspondence[35] By Special Condition 17.1, the agreement remained conditional upon theapproval by the purchasers' solicitor of a Deed of Option and the Special Conditionsof Sale including restrictive covenants, an Encumbrance and a Plan of Proposed Subdivision.[36] On 6 March 2002, the Lindsays' solicitors wrote to Noble's solicitors. Theyreferred to the conditional state of the agreement. They then recorded: Your vendor client has represented and warranted the following:1. The vendor's application for a further consent for further subdivision will include Lot 4 and will be at the vendor's cost;2. Road widening of the access lot will continue around Lot 4 and extend to Lot 21;3. The capacity of services to be installed at the cost of the vendor will be adequate for the proposed further subdivision (including Lot 4);5 Above fn 1.4. The services when installed will extend along the access lot/road to Lot 21;5. Mr & Mrs Lindsay and/or their successors in title will be able to connect to the new services as installed in which situation they will have to pay the cost of such connections and relevant Council fees, but there will be no cost recovery by the vendor the cost of installing the services.Relying upon the above representations and warranties by the vendor, we are instructed to advise clause 17 of the agreement is satisfied. Will you kindly confirm the vendor acknowledges the above representations and warranties which will be deemed to be included in the agreement.[37] Noble's solicitors responded by letter on 7 March 2002 and stated:Thank you for your letter of 6 March 2002.We look forward to receiving your confirmation of the condition regardingthe sale of your client's existing property as soon as possible.In respect of the Deed of Option and special conditions of sale, our clients confirm the representations and warranties in paragraphs 1, 3 and 5 of your letter.In respect of paragraphs 2 and 4, our client is not in a position at this stage of the subdivision to guarantee that the road widening of the access lot and the services will extend along the southern boundary of Lot 4.The arguments as to stormwater[38] In his initial affidavit, Mr Lindsay described the 2002 agreement. He added: The sale agreement included terms agreed in the correspondence annexed to the agreement dated 6 and 7 March 2002 between Harold Smith & Dallison (acting for us) and Buddle Findlay (then acting for Noble) [39] In his affidavit, Mr Lindsay referred also to the letter which the Lindsays' solicitors sent to Noble's solicitors following the lodging of the Lindsays' caveat. Dallison Stone, in that letter asserted that the terms of the agreement included the2002 correspondence. They asserted (with implied reference to the "services"referred to at the paragraph numbered 3 in the 6 March 2002 letter) that the services would need to include sewer, stormwater, telephone, power and water.[40] The contention that stormwater was a service which Noble was obliged to provide was covered by Mr Forbes in his written submissions for the hearing in a brief and general way. Relying on the 2002 correspondence, Mr Forbes submitted that Noble had agreed that the capacity of the services to be installed at the cost of Noble would be adequate for the further subdivision, including Lot 4.[41] In his oral submissions, Mr Forbes developed that proposition. He submitted that it is at least arguable that paragraph 3 of the 6 March 2002 letter, with itsreference to "the capacity of services" must relate to all services expected to berequired. Mr Forbes referred to the judgment of the Supreme Court in Vector Gas Ltd v Bay of Plenty Energy Ltd.6 He submitted that earlier discussions of the partiesmight be admitted at a trial to assist the interpretation of the term "services" as usedin the letter.Conclusion as to stormwater[42] There are two answers to Mr Forbes' submission.[43] First, if a party to a contract wishes to pray in aid some earlier correspondence or discussions as relevant to interpretation, that party must at least lay an evidential foundation that there is some background material which may assist the Court. The suggestion that there may be such material and that Vector Gas will become relevant was raised only in submissions in the course of the hearing. The Lindsays have not provided evidence to point to the existence of relevant background material.[44] Secondly, it is not reasonable to interpret the term "services" as used in the 6March 2002 letter to be a reference to any services other than those identified as services by the contract. The full expression used in the March 2002correspondence, namely "services to be installed at the cost of the vendor", is clearly a reference back to the agreement. The definition of "services" in Special Condition16 (above at [31]) exhaustively defines services in a way which excludes stormwater.6 Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5; [2010] 2 NZLR 444.Consistently with that, Special Condition 19 (above at [32]), provides for each of thedefined "services" in detail, again to the exclusion of stormwater.7[45] It is not reasonably arguable that the February 2002 agreement obliged Noble to provide stormwater services to Lot 4. Nor is it reasonably arguable that the March2002 solicitors' correspondence added such an obligation.[46] Accordingly, if the caveat is to be sustained it is by reason of an obligation other than in relation to stormwater services.The carriage-way for Lot 22Special Condition 19.2[47] In the agreement, Special Condition 19.2 (which I have set out above at [32])establishes Noble's obligation in relation to the formation of a carriage-way of at least 4.5 metres in Lot 22. I repeat for convenience what Special Condition 19.2 went on to provide:The width and standard of formation of this carriageway will be that currently required for a private accessway, but with the intention (without providing any warranty as to future local authority requirements) that, to the extent of its formation, it will be of a quality capable, following widening and the completion of any additional construction and service requirements of the Relevant Authority, of being vested in the Relevant Authority as legal road.The Lindsays' argument as to Lot 22[48] The Lindsays' case as to the carriage-way was formulated by Mr Forbes byreference to the 2002 correspondence. Mr Forbes submitted that by the solicitor'scorrespondence Noble agreed that (and I quote Mr Forbes' written submission):(i) the road widening of the Access Lot (ie Lot 22) and the servicesto be provided by Noble would continue around Lot 4 (ie from Lot 22 north-south) and extend along the southern boundary of Lot 4 (ie along Lot 22 east-west) to the western boundary of Lot 4 (but not to Lot 21, as Harold Smith and Dallison had sought).7 Above at [32].[49] The additional "warranties" stipulated for by the Lindsays in their solicitors'6 March 2002 letter, specifically dealing with the widening of Lot 22, were paragraphs 2 and 4 which read:2. Road widening of the access lot will continue around Lot 4 and extend to Lot 21;4. The services when installed will extend along the access lot/road to Lot 21;[50] In response to the request for confirmation that the various warranties wereacknowledged by Noble, Noble's solicitors recorded that the warranties inparagraphs 1, 3 and 5 were confirmed.[51] In relation to paragraphs 2 and 4, the solicitors recorded that Noble was not in a position to confirm that the road-widening of Lot 22 and the services would extend along the southern boundary of Lot 4 to Lot 21. What Noble did confirm was that the road-widening of Lot 22 and services would extend along the southern boundary of Lot 4 (meaning not as far west as to abut Lots 5, 6 and 7 or to reach Lot 21).Noble's argument as to Special Condition 19.2[52] Ms Dwight's submissions for Noble were addressed at two levels, being firstin relation to Special Condition 19.2 and secondly in relation to the 2002 correspondence relied upon by the Lindsays.[53] Ms Dwight submitted that Noble's obligation under Special Condition 19.2 toconstruct the sealed carriage-way within Lot 22 was limited. That is clearly so –clause 19.2 defined the obligations. There was no suggestion in the Lindsays' evidence, or Mr Forbes' submissions, that Noble failed to provide a carriage-way of the width and standard of formation then required for a private Access Way. Mr Prain, for Noble, has deposed that Noble has constructed the 4.5 metre sealed carriage-way within Lot 22 and has provided the services referred to in Special Condition 19. The structure of Special Condition 19.2 evidences a recognition by the parties that further work and services might then be required if Lot 22 were tovest as a legal road. Hence the reference to "following widening and the completion of any additional requirements". The parties in Special Condition 19.2 record anintention as to a future ability to have Lot 22 vested as a legal road but refrain in Special Condition 19.2 from imposing an obligation on Noble to effect such vesting. Similarly, with the inclusion of an express provision that Noble does not warrant future local authority requirements, the parties recognised that the Lindsays would carry the risk that there might be different or more onerous council requirements after Noble completed the construction of Lot 22 to the standard specified in Special Condition 19.2.Discussion as to Special Condition 19.2[54] Mr Lindsay's initial affidavit does not assist in explaining how Noble is said to have failed to fulfil the requirements of Special Condition 19.2. While Mr Lindsay at one point refers to a failure by Noble to provide the road and full services to Lot 4, he does so by reference to the incorrect Special Condition 15, with no reference to Special Condition 19.2, the condition actually contained in his agreement.[55] It is in his second affidavit that Mr Lindsay first refers to Special Condition 19. He refers also to the March 2002 solicitor's correspondence. He asserts that itwas in that correspondence that Noble agreed that the road-widening of Lot 22 and the services to be provided by Noble would continue around Lot 4 (on Lot 22 north- south) and extend along the southern boundary of Lot 4 (Lot 22 east-west) to the western boundary of Lot 4.[56] In fact, the only warranty agreed by Noble in its solicitor's 7 March 2002reply, in relation to these matters, was that road-widening of Lot 22 and the services would extend along the southern boundary of Lot 4.Conclusion as to Special Condition 19.2[57] The Lindsays' suggestion of an unfulfilled obligation appeared to merge reliance on Special Condition 19 with reliance on Special Condition 23 relating to a road-widening area. I will turn to that assertion shortly.[58] At this point of the judgment, I conclude that Noble has no unfulfilled obligation under Special Condition 19.2 and therefore it is not reasonably arguable that there is a caveatable interest arising directly from that provision.Application for vesting of Lot 22Special Condition 23[59] In his written synopsis, Mr Forbes referred to the provisions of Special Condition 23 which deals with the vesting or dedication of Lot 22 and of landdefined as the "Road Widening Area" in the Christchurch City Council.[60] Special Condition 23 provided:23.1 As part of the process of pursuing the Further Consent and undertaking the Further Subdivision the Vendor shall apply on behalf of the Purchaser and the other Noble Owners, for the vesting or dedication of the Access Lot (including the Road Widening Area) in the Relevant Authority. The Purchaser covenants that, if so requested, it will execute whatever documents are required to give effect to that vesting or dedication, and will transfer or relinquish all estate or interest in the Access Lot, (including the Road Widening Area) to the Relevant Authority for $1.23.2 The Vendor will include a clause substantially the same as this clause 23 in any sale of the other lots in Noble.The Lindsays' arguments as to Special Condition 23[61] In his written submissions, Mr Forbes said of Special Condition 23 that it provides for Noble to apply for the vesting of the Access Lot as a legal road in the Relevant Authority at which point the purchaser will transfer all interest in it, including the Road Widening Area, to the Relevant Authority.[62] The Lindsays did not specifically rely on Special Condition 23 in their Notice of Originating Application. Nor did Mr Lindsay refer to it in his initial affidavit.[63] In Mr Lindsay's second affidavit, filed after Noble had provided its documents in opposition, Mr Lindsay devoted eleven paragraphs (over three pages) to Lot 22 (the Access Lot).[64] He summarised the provisions of Special Condition 23. He went on:We claim that only Noble has the right, and the obligation, to upgrade and widen Lot 22. None of the joint owners of Lot 22 has control over it. Noble agreed to this obligation under our sale agreement[65] Mr Lindsay then referred to plans which Noble gave the Lindsays at the time of the purchase, the plans showing Lot 22 as the access road to Yaldhurst Road out of the subdivision (as did the plan attached to the agreement). Mr Lindsay states that Lot 22, widened and vested as a legal road, would have provided for stormwater discharge and other services to Lot 4.[66] He explains that the Lindsays had caveated Lot 11 partly because Lot 11 would be required if the main access for the subdivision follows Lot 22 to YaldhurstRoad. The Lindsays want Lot 22 "protected" as a potential main access route onto Yaldhurst Road.[67] Mr Lindsay refers to Noble's development of what has become known as the "spine road" to be Noble's main route through the subdivision. Mr Lindsay refers todifficulties which still confront Noble in completing the subdivision with the spine road as the main access route. Those difficulties with the spine road had been identified by the time of my second judgment in Philpott.8 Mr Lindsay's secondaffidavit contains an update as to his understanding of the difficulties of Noble'sprogress in relation to the spine road. It appears that Noble has still been unable to meet requirements (including those of New Zealand Transport Agency) in relation to the connection of the spine road to Yaldhurst Road. Mr Lindsay says he also understands that at present Noble has not legally secured a right of access from Lot 22 to the spine road through the two side roads which Noble has for the time being called Roads 2 and 9.[68] Mr Lindsay concludes by deposing that the Lindsays consider that upgradingand widening of Lot 22 as a legal road is required to protect the Lindsays' interestsfully before they and other relevant land owners are able to subdivide their land. He8 Philpott v Noble Investments Ltd [2013] NZHC 400.deposes that the Lindsays fear that if Noble ceases to have control of land adjoiningLot 22 Noble will lose "its ability to fulfil its obligations to us".[69] Special Condition 23 deals with the vesting or dedication of two areas of land. First, there is Lot 22, co-owned by the Lindsays and other purchasers in shares. Secondly, there is the Road Widening Area which in the case of the Lindsays is their southern most strip of land in Lot 4 running alongside Lot 22 east-west.[70] By their nature, the areas of land referred to in Special Condition 23 (owned other than by Noble) are not the subject of this caveat.Noble's arguments as to Special Condition 23[71] Ms Dwight described Special Condition 23.1 as imposing a single obligation upon Noble, namely to make the vesting application on behalf of the Lindsays and other purchasers. In this regard she noted that Clause 23 follows Clause 21 in which Noble took on obligations in relation to obtaining resource consent for further subdivision on behalf of the Lot 22 owners.Conclusion as to Special Condition 23[72] I accept Ms Dwight's analysis. Special Condition 23 is not concerned withNoble's land as caveated by the Lindsays. It is concerned with the land owned eitherby the Lindsays or co-owned by the Lindsays with other persons. It follows that Special Condition 23 does not create any entitlement on the part of the Lindsays in relation to the land owned by Noble. What the Lindsays have is a right to require Noble to make application for the vesting of Lot 22 and the Road Widening Area as part of the further subdivision.[73] It is not reasonably arguable that the Lindsays acquired through Special Condition 23 a caveatable interest in land owned by Noble.99 See the same conclusion in Philpott, above n 3 at [78].A right in relation to easements for roadway and other services?The caveat claim[74] The caveat claim refers to services "which of necessity may require theregistration of easements by Noblein favour of [the Lindsays]."[75] The caveators in Philpott10 asserted an interest in road access or rights of way in addition to an easement for services.Background – relationship between Lot 22 and the spine road[76] When Noble entered into contracts with the Lindsays and others in 2002, theplans used and the naming of Lot 22 as the "Access Lot", running north ontoYaldhurst Road, were incorporated in what the contract described as the "Proposed Subdivision".[77] By August 2008 Noble evolved the planning of the further subdivision toinclude what came to be called the "spine road". The history of this development ismore fully set out in my first judgment in Philpott.11[78] By 2009 Noble's engineers had prepared drawings for further stages of the subdivision which showed Lot 22 north-south no longer having access directly onto Yaldhurst Road. The roadway on Lot 22 is shown stopping about 140 m south of Yaldhurst Road, at which point Lot 22 connects east to the spine road through a new lot, now called Road 9. On the east side of the remaining Lot 22 north-south access there was created Lot 514 immediately to the east of Lot 22 which had the function of widening the provision for that access-way. Additionally at the eastern end of Lot 22 east-west there was created a new lot (now called Road 2) which is intended by Noble to be vested as a road connecting the spine road to Lot 22 east-west.12[79] Noble's evidence at the time of the first hearing Philpott was that the roading network adopting the spine road with connections to Lot 22 was expected to vest in10 Philpott, above, n 3.11 At [22] – [27].12 At [28] – [30].the Council in the near future. Any land for road widening of Lot 22 east-west needed to come from the owners of lots abutting Lot 22 east-west. The Court was not directly concerned with those rights as Noble had no interest over Lot 22 east- west capable of being caveated. Noble however still owned the lots to the east of Lot 22 north-south (Lots 12, 13, 14, 15 and 16). In that regard Noble had proposed the creation of the two lots to which I have referred in the preceding paragraph (at the time of the Philpott proceedings called Lots 510 and 514, now called Roads 2 and 9).An arguable case for an equitable easement[80] On the evidence at the first hearing in Philpott, I found that the caveators had established a reasonably arguable case that by the 2002 agreement Noble had granted the caveators an equitable easement.13 Mr Forbes invites me to adopt the same conclusion in this case.[81] The conclusion is supported by the authorities which I discussed in Philpott, and in particular authorities as to the creation of equitable easements and as to the requirements as to definition of an easement.14 The principles emerging from those authorities, as identified in Philpott, may be summarised as follows:(a) Easements may be created in situations where it can be established that the creation of the easement was in the common intention of the parties, or the creation of the easement arises of necessity:McMorland on Easements, Covenants and Licenses (LexisNexis, Wellington, 2010) at [2.3.2a].(b) In situations where there is uncertainty as to the interest created, the interest will likely be construed as an equitable easement unless there are strong indications that the right was intended to be personal to the grantee: McMorland at [1.3.3].13 Philpott, above, n 1, at [82](a).14 At [52] to [69].(c) The test for determining the existence of an equitable easement is a two-stage test:(i) does an intention appear to confer a right to affect the land of the grantor or covenantor?(ii) is this right one of those as to which, either from decided cases (such as a right of way – the commonest form of easement) or by analogy, is a right capable of being made the subject of a grant as an easement?If these two questions be answered in the affirmative an easement has been created: McDonald v Peddle (1923) 42 NZLR 987, affirmed [1924] NZLR 717 (CA), affirmed (1925) NZPCC 138, citingWellington City Corporation v Public Trustee [1921] NZLR 1086 at 1096.(d) In cases of the present kind the principles distilled from Hart v Mitchell (2006) 7 NZCPR 588 recognise the likelihood of such grants being construed as equitable easements:(i) a right of way, as the subject matter of an agreement, represents the classic subject matter for the grant of an easement: at [48].(ii) the absence of express words describing a formal obligation to grant a registered right of way easement is not definitive: at [46] – [48].(iii) the key issue is as to the parties' intentions (objectivelyconstrued).(e) An easement must be sufficiently defined as to location, width, start and finish, with the starting and finishing points being the mostimportant information: McMorland (above) at [4.1.1]; Philpott v NZI Bank Ltd (1989) 1 NZ ConvC 190,246.(f) In the Philpott proceedings, and in the present case, there was an arguable contractual intention that the access to Yaldhurst Road would be via the Access Lot. This was sufficiently defined to sustain an easement. In any event Noble has subsequently delineated a clear proposed access route, namely the Spine Road, which meets the requirements of sufficiency of definition. It is therefore arguable that this requirement is met, which is sufficient for lapsing proceedings:Philpott v Noble Investments Ltd [2012] NZHC 1431 at [69] – [75].[82] On the facts I found in the first Philpott judgment that the caveators, protecting arguable equitable interests, ought not to be removed pursuant to theCourt's residual discretion except on certain conditions which would protect the caveators' interests. I found that Noble's vesting of the road network based on the spine road would satisfy the obligations protected by equitable easement.[83] Noble's expected road network outcome, as presented to the Court at the firsthearing, had not been achieved by the time of the second hearing in Philpott.15Pursuant to leave reserved, the parties each applied to the Court for further directions for amendments of the first judgment.[84] The factual position as presented to the Court at the first Philpott hearing (in 2012) had altered by the time of the second hearing. As I recorded in the secondPhilpott judgment:16 At the 2012 hearing, the evidence was presented and the case argued upon an assumption that the spine road as shown on Schedules 2 and 3 of the judgment that Noble (subject only to having the Caveat 1 removed from the Title) was in a legal position to have the land comprising the spine road vested in the Christchurch City Council. Noble was not in fact in such a position.15 February 201316 Philpott v Noble Investments Ltd [2013] NZHC 400 at [53].[85] It had emerged that there was a problem where the spine road was to merge with Yaldhurst Road. There was a "knob" in the northern-most section of Lot 22 north-south (where Lot 22 meets Yaldhurst Road) which Noble needed to control in order to have the spine road vest. Noble had not secured a solution with the owners of Lot 22 to enable vesting to occur.17[86] For the Philpott caveators, counsel argued that the caveats were supportable as relating to equitable easements by reason of a further line of authority. Mr Palmer referred to Australian and New Zealand authorities dealing with the proposition that a caveat cannot attach to land in which the caveator has no interest. He referred toHinde McMorland & Sim Land Law in New Zealand, in which the authors state:18A different principle may apply in relation to land that is to besubdivided.[87] I did not find it necessary to consider those authorities further because I had already found for the caveators in relation to an assertion of caveatable interest on the basis of an application of broader principles.19The evidence of Noble's subsequent progress in having the spine road vest[88] Noble's opposition to the Lindsays' application in this proceeding for ordersthat the caveat not lapse was filed on 11 July 2013. Richard Graham, the surveyor who had provided evidence for Noble in the Philpott proceedings, provided an affidavit in opposition. He explained the subdivisional layout based on the spine road. He deposed as to the difficulties over the Lot 22 knob. He continued:The only matter preventing completion of these works is the refusal of some Lot 22 owners to consent to providing access to the works. The same landowners have also not yet provided consent for the vesting of the 'knob' asroad once the works are completed.[89] Mr Graham recorded that while the impasse over the Yaldhurst/spine road intersection remained unresolved, the New Zealand Transport Agency would not allow access from the subdivision at that point. He explained that instead the road17 At [53] – [59].18 At [19] to [25].19 At [25].access for those in the subdivision was for the time being available through the southern extension of the spine road via a road called Jarmac Boulevard.[90] Noble filed, in addition to Mr Graham's affidavit, an affidavit from the development manager, Justin Prain. Mr Prain provided a similar explanation to that of Mr Graham in relation to the difficulties in vesting the spine road. Mr Prain statedunequivocally that "[a]t present the spine road cannot vest."[91] Mr Prain explained that in addition to the difficulties over the Lot 22 knob, there was a separate caveat affecting part of the land required for the vesting of the spine road (that being the caveat lodged by the applicants in the Philpottproceedings).[92] Mr Prain also introduced evidence as to the Lindsays' knowledge of the 2006 Environment Court proceeding in which plans for the current spine road were approved. Mr Prain deposed:While Lot 22 was originally conceived as the "access lot", it was replaced bythe current spine road in plans that were approved by the Environment Court in 2006. The applicants were aware of this process and of the change to the roading layout of the development and took no objection to it.[93] Mr Lindsay filed a reply affidavit. He referred to a consent application which Noble apparently lodged with the Christchurch City Council in July 2013, preparedby Mr Graham's firm, Cardno. On the front of the document, it is stated that the consent application has been prepared not only for Noble Investments Limited and other owners but also for Mr & Mrs Lindsay. Mr Lindsay deposes that the agreement of the Lindsays to the application was not sought or obtained. TheLindsays took legal advice from Queen's Counsel and were advised that Noble wasnot properly entitled to make an application that way. Following correspondencesent by the Lindsays' solicitor to the Council, the Lindsays were advised that the application had been returned to Noble by the Council.[94] In a further affidavit filed by Mr Prain shortly before this hearing, Mr Prain confirmed what Mr Lindsay had stated in relation to the consent application. Headded that Noble had subsequently amended the application so as to be in Noble'sname alone. He deposes that it has now been submitted to the Council again.[95] It is clear from the evidence that the Lindsays did not agree in 2013 with either Noble or with any relevant authority to a roading network for the subdivision based on the spine road and involving a closure of Lot 22 north-south where that lot would otherwise meet Yaldhurst Road. The representation made in the July 2013 consent application that the application was on behalf of the Lindsays was incorrect.[96] In his second affidavit, filed shortly before this hearing and said to be "inreply to affidavits of Stuart Lindsay dated 23 October 2013 and 21 November 2013", Mr Graham referred to extracts from the City Plan. Those show one exit to Yaldhurst Road from the subdivision, being the spine road. Mr Graham then deposed that the Plan was amended following hearings in the Environment Court in 2006 in which Mr & Mrs Lindsay were represented.[97] To similar effect was a second affidavit filed by Mr Prain which referred to the Lindsays as having been represented in 2006 hearings by Ms Steven, as recordedin the decision of the Environment Court dated 23 May 2006. As with Mr Graham'sevidence, there is no allegation by Mr Prain that the Lindsays had agreed to what Noble was proposing in terms of the spine road and of Lot 22.[98] In her submissions for Noble, Ms Dwight noted that the Lindsays complainthat Noble's current roading network plan would require that Lot 22 access toYaldhurst Road be via the spine road, rather than directly onto Yaldhurst Road, which they (the Lindsays) have not agreed to. Ms Dwight stated that Noble rejectsthe Lindsays' assertions in this regard. In other words, Ms Dwight was asking theCourt to regard the Lindsays as having agreed to the change to the routing of Lot 22. For this proposition she referred to Mr Graham's second affidavit. As I have quoted him (above at [92]), however, Mr Graham did not refer to agreement but rather he said the Lindsays had not objected to the change.[99] At its highest the Noble evidence is that the Lindsays did not object toNoble's plans in 2006. Contrary to the thrust of Ms Dwight's submission, non-opposition to a planning decision does not of itself equate to a change in contractual rights. Noble has not demonstrated that it is beyond argument that the Lindsays in some way lost what the Court may find to be arguable rights by virtue of their involvement in planning processes either in 2006 or subsequently.[100] By reason of this conclusion it is unnecessary that I grant leave to Mr Forbes for the Lindsays to provide further information as to the involvement of the Lindsays and Ms Steven in the 2006 Environment Court proceedings. As Mr Forbes noted, the detail of those allegations had been provided to the Court through Mr Prain'saffidavit only shortly before the hearing, and then in the form of a reply to a reply.Mr Forbes indicated that the Lindsays' position was that (contrary to the suggestioncontained in Environment Court record) Ms Steven had not been authorised to represent the Lindsays at the Environment Court hearing. It is unnecessary that I consider a grant of leave to the Lindsays to adduce evidence on that specific point given my conclusion as to the lack of evidence of any agreement to the spine road/Lot 22 changes. Had the issue remained material, I would have granted leaveto the Lindsays to call reply evidence as to the extent of Ms Steven's instructions.Conclusions as to the Lindsays' interest[101] For reasons parallel to those in my first judgment in Philpott,20 which I adopt, I conclude that the Lindsays as caveators have established a reasonably arguable case that by the 2002 agreement Noble granted the caveators an equitable easement which protected rights of access for roadway and services (being in the case of the Lindsays other than stormwater services).[102] I further conclude that it is arguable that the Lindsays have not agreed to a variation of their contractual rights based on the spine road in part replacing Lot 22 for the purposes of providing road and services access. Hence it is arguable that the 2002 agreement giving rise to an equitable easement remains binding.[103] I have regard to the period during which Noble and the Lindsays (and some other purchasers) have remained at an impasse over the Lot 22 knob, and to the lack20 Philpott v Noble Investments Ltd [2012] NZHC 1431.of any suggestion in the evidence for Noble that there is a likelihood that the impasse will be resolved in the near future. For reasons I expand upon in the following paragraphs, I conclude that it is not appropriate for the Court in this case to consider, upon the evidence filed, the exercise of the residual discretion to order the removal of caveats as was done in my first judgment in Philpott.21 My conclusion in this regard, in this proceeding, is reinforced by the emerging evidence (as to difficulty in the vesting of the spine road) which led to the conclusions in my second judgment inPhilpott.22Non-exercise of the residual discretion[104] There remains uncertainty in relation to the spine road, both as to how the present impasse between Noble and adjoining land owners might be resolved and as to when vesting will occur. It is premature to consider imposing a set of conditions as to the circumstances in which the caveat would lapse. When I framed the conditions to the order in the first judgment in Philpott which allowed Noble to have the proceeding brought on for a lapsing order, it was upon the basis that when the spine road vested in the Council, it would do so in accordance with the plans which were in evidence before me. Given how matters have since developed, if the Court were now to anticipate the precise shape in which the spine road will ultimately vest, it would be undertaking a hypothetical exercise at best.[105] Ms Dwight submitted that the Court, in the event it were to decide that the Lindsays had a caveatable interest, should nevertheless order that the caveat lapse. This would be an exercise of the residual discretion, possibly complemented by undertakings to be given by Noble. Ms Dwight proposed (without accepting that Noble had a contractual obligation to do so) that Noble might provide an undertaking not to dispose of the land to be vested (in terms of the planned spine road and Roads 2 and 9) except by vesting such land in the Council.[106] Ms Dwight submitted that I should follow the judgment of Ronald Young J inHoward v Rangeview Investments Ltd.23 In particular she noted the adoption by the21 At [103] to [105]22 Philpott, above, n 3, especially at [53].23 Howard v Rangeview Investments Ltd (2006) 7 NZCPR 473.Court in Rangeview of an undertaking as a means of enabling a subdivision of a larger block of land to proceed. Ms Dwight submitted that Rangeview supported a proposition in a case such as the present Noble should not be impeded in completing the subdivision of its own development by the caveat.[107] Mr Forbes submitted, and I accept, that the material facts of Rangeview are different to the facts of this case.[108] There were a number of issues in Rangeview. The applicants had caveated the larger block of land owned by the respondent. One interest caveated was theapplicant's right to a Lot 5 being subdivided off for the applicants. The caveat alsoprotected the applicants' interest in an access way which had previously beenprovided by the respondent. The applicant was entitled to the continuing use of the access way.24 Ronald Young J found that the applicant was not entitled to caveat the whole of the land to protect the access way.25 The protection of the existing right of access could be achieved through suitable undertakings from the respondent as to the creation of either a separate lot for the right of way or the use of an easement.26 It is implicit in the judgment of the Court in Rangeview that the existing right of way was well defined. The undertakings were a means of converting an informal (defined) right of way into a formal right of way.[109] In the present case, the completion of the legalities surrounding the connection of the Noble Village roading network onto Yaldhurst Road is not a matter of simply completing formalities. The probability is that agreements will need to be reached between various parties if Noble's present plans are to be consummated.The history of the Philpott litigation is powerful evidence that a commercial impasse has arisen and that, notwithstanding what must be commercial imperative for most if not all involved, the parties have been unable to get to a point where all that is left to be done is to formalise acknowledged rights.24 At [28].25 At [29].26 At [31].[110] The concept in Rangeview of replacing the caveat with undertakings is inapplicable precisely because Noble is not in a position to undertake that the spine road will connect with Yaldhurst Road as Noble at present plans it.The appropriate form of order[111] I have found against the Lindsays in relation to their arguments as to caveatable interests relating to stormwater. That major consideration in their arguments and in their evidence does not fall for further consideration.[112] The Lindsays nevertheless have an interest which needs to be protected so long as Noble cannot deliver legal access to Yaldhurst Road through the spine road. But there are titles of Noble which the Lindsays have caveated which are notrequired to reasonably protect the Lindsays' interests in relation to access. The appropriate course before the Court finalises its order is to have counsel confer and to submit an agreed memorandum as to the lots which are therefore to continue to be subject to the caveat and those in relation to which the caveat will lapse. Failing agreement, I will finalise the order on the basis of memoranda to be filed.[113] A final issue is whether this proceeding should now come to an end – should the application be dismissed except to the extent now to be granted. Noble Village remains a subdivision in progress. The likelihood is that the spine road will be finalised in some form and will vest. In these circumstances I have considered whether it might be appropriate to reserve leave to Noble to have the proceeding brought on for further direction if and when the spine road vests. On balance, I am not satisfied that the circumstances make a reservation of such leave appropriate. Through Philpott and now this case there is an ever-lengthening history involvingNoble's inability to bring the spine road to vesting. Rather than tie this proceeding(through a reservation of leave) into the duration of the spine road saga, the more appropriate course is to leave the parties either to establish their substantive rights through an ordinary proceeding or to leave Noble with its right at a later appropriate time to pursue removal of the caveat.Order[114] I order:(a) Caveat 9233633 ("the caveat") shall not lapse until further order ofthe Court;(b) The respondent is entitled to an order that the caveat lapse to the extent it affects lots other than those which secure access from Lot 4 to Yaldhurst Road;(c) Counsel are to confer and, if agreed, are to file within 15 working days a joint memorandum which identifies the two categories of lots referred to in [114](b) above or (failing such agreement) are to file separate memoranda as to their respective positions.(d) Costs are reserved.Associate Judge OsborneAddendum – further evidence and submissions[115] A month after the hearing in this proceeding, and at a time when this judgment was in draft form, counsel for the Lindsays sought leave to file further submissions and evidence. By a minute dated 11 March 2014 I directed counsel to file submissions as to whether leave should be granted in relation to the proposed submissions and proposed evidence.[116] As I have concluded that the new evidence should not be admitted and therefore submissions not received in relation to it, I address the request for leave by way of this addendum.The Lindsays' additional submissions and evidence[117] The additional submissions for the Lindsays, presented by Mr Hughes- Johnson QC, were three-pronged:(a) An outline of further documentary evidence sought to be adduced by the Lindsays. This evidence was as follows:(i) Letter from Cardno TCB to Mr and Mrs Lindsay dated 28 October 2008: the Lindsays submit that this letter, itself enclosing an unsigned agreement, evidences on the part of Noble a belief that Noble had the right to access Lot 22 to carry out works and an intention to form and seal Lot 22 on a widened basis.(ii) Letter from Cavell Leitch to Mr and Mrs Lindsay dated 16 February 2012: the Lindsays submit that this letter shows that Noble, contrary contrary to its current position has in the past claimed a right to access and carry out works on Lot 22.(iii) Letter from Cavell Leitch to Mr Prain dated 10 August 2012: The Lindsays submit that this letter evidences that Noble has previously maintained that the joint owners of Lot 22 had alegal obligation to permit Noble to access and carry out works on Lot 22.(iv) Letter from Cavell Leitch to Buddle Findlay dated 28 August 2012: the Lindsays submit that this letter evidences Noble'sexpectation that it would have access to Lot 22 because such was necessary to form the relevant section of roading.(b) Relevant legal authorities in support of adducing such evidence following the conclusion of the hearing:(i) Although under s 98(1) Evidence Act 2006 the default position is that no new evidence may be adduced after the closing ofthe party's case, under s 98 (1) there is a judicial discretion to permit the filing of further evidence.(ii) There are authorities which may be cited in support of the proposition that the Lindsays' proposed further evidence ought to be admitted on the basis that the applicable test is whether the proposed material relevant and its admission would not be unfair to the other party.(c) A submission that by a combination of the Deed of Option (aspects of which they claim remain in force), cl. 21.5 Agreement for Sale and Purchase, and the land covenant (not previously raised in submissions) reinforces the view that Noble has a right to access Lot 22, the land covenant constraining the owners of Lot 22 to the extent that only Noble is able to take steps in relation to Lot 22.Noble's submissions[118] Ms Dwight first submits that the further evidence should not be admitted. Alternatively, she presents submissions in response to the substance of the proposed submissions and proposed evidence.Admissibility[119] Ms Dwight submits that the test for admissibility of new evidence under s 98Evidence Act remains whether the proposed evidence is "new and fresh" and that it "must be capable of belief and cogent in the sense that it might reasonably lead to adifferent result."27 Ms Dwight then submits that the "exceptional circumstances" test for admissibility of new evidence has not been satisfied by the Lindsays.Evidence[120] In her alternative submissions, Ms Dwight discussed each point raised by the Lindsays before concluding:it is submitted [that the Lindsays' submissions] take matters no further andare inconsistent with any argument that only Noble has the right and obligation to upgrade Lot 22.[121] As to admissibility, s 98 Evidence Act relevantly reads:98 Further evidence after closure of case(1) In any proceeding, a party may not offer further evidence after closing that party's case, except with the permission of the Judge.(2) In a civil proceeding, the Judge may not grant permission under subsection (1) if any unfairness caused to any other party by the granting of permission cannot be remedied by an adjournment or an award of costs, or both.(5) The Judge may grant permission under subsection (1),—(b) at any time until judgment is delivered.[122] McGechan on Procedure provides a concise and useful summary of the position:2827 New Zealand Rail Ltd v Accident Rehabilitation & Compensation Corporation & Anor HC Wellington CP473/93, 21 September 1995, per Eichelbaum CJ, at p 6.28 McGechan on Procedure (online looseleaf ed, Brookers) at HR10.10.07.(2) Discretion to admitSubject to s 98(2), the Court has a broad discretion to admit further evidencefor the Judge's own satisfaction or when the interests of justice require it:Montego Motors Ltd v Horn [1974] 2 NZLR 21 at 25; Easton v Cramp Developments Ltd [1975] 1 NZLR 641. In Montego Motors, Cooke Jrecognised "the power naturally possessed by a Court of civil jurisdiction toentertain further evidence after judgment is reserved", although restricting that power to "exceptional cases only" (at 25 and 26 respectively). InEquiticorp Industries Group Ltd (in stat man) v Hawkins [1996] 2 NZLR 82, (1995) 9 PRNZ 313 at 85, 317, Smellie J approved this summary emerging from an exhaustive analysis by counsel of recent authorities (which the Judge lists):(a) The discretion should be exercised sparingly once the cases on both sides have closed and leave should only be given in exceptional circumstances;(b) Only if the failure to call evidence at the proper time is adequately explained should the discretion be exercised;(c) The justice of the case must require the admission of the additional evidence;(d) Leave will be refused if the evidence would have been available had due diligence been exercised;(e) If the party is taken by surprise, leave will be more readily granted; and(f) The distinction between a failure to tender evidence, and an election not to call evidence, can be important.Those principles are similar if not identical to those applying when leave is sought to adduce further evidence on appeal: NZ Rail Ltd v ARCI Corp & NZ Rail Corp HC Wellington CP473/93, 21 September 1995; United Bank Ltd v Everett HC Auckland CP157/93, 24 October 1995.[123] There is a risk in this area of overlooking the principle, as articulated by theSupreme Court, that "resort is not to be had to the common law when statute covers the ground."29 More recently, in the Supreme Court's decision in Hart v R Elias CJ stated as follows:30[1] The Evidence Act 2006 is significant legislation which restates the principles upon which evidence is admitted in Court proceedings and substantially reforms the pre-existing law. It is the first stop when questions of admissibility arise. And in many cases it will be the last stop. In interpretation of the Act and where the Act is silent on a question of admissibility, ss 10 and 12 permit recourse to the29 BNZ Investments Ltd v Commissioner of Inland Revenue [2008] 2 NZLR 709 at [71].30 Hart v R [2010] NZSC 91; [2011] 1 NZLR 1; (2010) 24 CRNZ 924.common law, provided the common law is consistent with the purpose and principles of the Act[124] Consistent with the 'first-stop' principle is the observation of Tipping J, in delivering the reasons of himself, Elias CJ and Blanchard J in Mahomed v R:31[4] We do not consider a great deal is now to be gained from an examination of pre-Evidence Act case law. The Act substantially codified that case law and it is preferable, and consistent with s 10(1), to focus firmly on the terms of the Act; albeit the application or interpretation of a particular provision in the Act may sometimes benefit from a consideration of the previous common law.[125] The starting point under s 98 is therefore that the evidence is not to be offered without my permission. Subsections (2) and (5) then permit discretionary departure from that starting point, but only where unfairness can be remedied by an adjournment or a costs award.[126] That discretion must be exercised by reference to the purposes of the Evidence Act as contained in s 6, which relevantly provide:6 PurposeThe purpose of this Act is to help secure the just determination of proceedings by—(a) providing for facts to be established by the application of logical rules; and(c) promoting fairness to parties and witnesses; and(e) avoiding unjustifiable expense and delay; and[127] Here, for the most part, the Evidence Act covers the ground. While pre-Act case law may assist in highlighting matters that may be relevant to the exercise of the discretion, the provisions of the Act itself are the paramount consideration. In civil proceedings, the reference in s 98(2) to an adjournment contemplates that the furtherevidence will normally be adduced after the party's case has closed, but before the31 Mahomed v R [2011] NZSC 52; [2011] 3 NZLR 145; (2011) 25 CRNZ 223.conclusion of the hearing. That is not the case here. Here the Lindsays sought to adduce further evidence almost a month after the hearing had concluded. Yet the Lindsays had three of the letters in their possession for at least 18 months before the hearing. They had the first letter for longer.[128] The criticisms of delay, and the fact that the evidence sought to be adduced isnot in fact "fresh", apply equally to the Deed of Option, the cl. 21.5 and the land covenant issues. Indeed, the letter to Buddle Findlay (the fourth letter) is the only further item to which such criticisms may not apply.[129] In this case the delay was unsatisfactory. I have concluded that almost all the proposed additional evidence was available to the Lindsays well before the hearing. This is not an application which came quickly to hearing – it was filed in June 2013 and was heard in February 2014. Affidavits were filed up to February 2014. The hearing was in relation not to a trial to finally determine substantive rights but ratherin the Courts' caveat jurisdiction, in which the Lindsays were required to establish rights to a standard of reasonable arguability, not probability. This is intended to be a jurisdiction in which determination may be promptly obtained in the interests of both caveator and registered proprietor.[130] I refuse permission to receive the further evidence and submissions.Associate Judge OsborneSolicitors:Dallison Stone, ChristchurchCounsel: A J Forbes QC, ChristchurchCavell Leitch, ChristchurchSCHEDULE 1SCHEDULE 2