BETHELL & ANOR v BETHELL CA33/2014 [2014] NZCA 442

BETHELL & ANOR v BETHELL CA33/2014 [2014] NZCA 442 [5 September 2014]IN THE COURT OF APPEAL OF NEW ZEALANDCA33/2014[2014] NZCA 442BETWEEN VICTORIA ELIZABETH BETHELL asAdministrator of the estate of R M Bethelland MARIA GAEL BETHELLAppellantsAND CHRISTINE ANNE BETHELLRespondentHearing: 19 and 20 August 2014Court: Randerson, Wild and White JJCounsel: S A Grant and H E McQueen for AppellantsR J Thompson for RespondentJudgment: 5 September 2014 at 3:00 pmReissued: 17 October 2014Effective dateof Judgment: 5 September 2014JUDGMENT OF THE COURTA The application by the appellants for leave to adduce further evidence on appeal is dismissed.B The appeal is dismissed, save that the respondent is liable for the reasonable costs of obtaining the subdivision consent.C The appellants must pay costs to the respondent for a standard appeal on a Band A basis with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Randerson J)Table of ContentsPara NoIntroductionThe issuesThe evidence in more detailJohn's WillThe deed of family arrangement(a) What area of land was Chrissie entitled to under theDeed?The approach to interpretation adopted in the High CourtDiscussion of the interpretation approach(b) What were the respective rights and obligations ofChrissie and Ross under the Deed?Chrissie's rightsRoss's obligationsSummary to this pointThe evidence supporting the Judge's approach to thedetermination of Chrissie's interest in the 10 acres(c) Does Maria have any interest in the White House and thequarter acre of land in priority to Chrissie's rights or anyentitlement to compensation?Analysis(d) Who was responsible for the costs of the subdivision forChrissie's allotment?(e) If the appeal succeeds, does Chrissie have a claimnevertheless to a life interest in the land under the Will?Application to adduce further evidenceResult[1][13][17][19][23][27][27][33][52][52][64][69][70][79][86][91][93][94][99]Introduction[1] This appeal involves disputed claims to 10 acres of land at Te Henga onAuckland's West Coast. The Bethell family settled in Te Henga in the 1860s on landadjoining Bethells Beach. In the 1890s, John Neale Bethell acquired several blocks of land including one described by the parties as the principal block. This comprises mostly steep, bush-clad coastal land.[2] Mr Bethell's grandson, also called John Bethell (John), inherited several blocks including the principal block. John and his wife Shirley had four children: Margaret, Trudy, Ross and Christine (Chrissie). On his death in 1985, John devised the principal block to Ross. As a result of earlier subdivisions and the creation of reserve areas, the principal block had by then reduced to approximately 223 hectares.[3] Two features of the remaining land in the principal block are relevant for present purposes. First, there is a relatively flat area known to the family as the camping ground adjoining Bethells Road. It was intended to become a camping ground but we were told it has not been used as such. The second feature is an area of land known as the clay patch. This derived its name from an area where clay was extracted for the purposes of an earlier subdivision. It forms part of the land adjoining the camping area but is separated from it by steeply rising land not suitable for building. However, the clay patch and some adjoining areas are relatively flat and provide potential building sites with extensive views of the sea.[4] Chrissie is the respondent in this appeal. John's devise of the principal blockto Ross was subject to Chrissie having the right during her lifetime to rent at anominal figure "ten (10) acres more or less together with the camp and shopbuildings thereon (if any)". John's Will further provided that if a subdivision couldbe achieved, Chrissie would be entitled to have the same 10 acres transferred to her absolutely.[5] Difficulties in the implementation of the Will led to a Deed of family arrangement in 1987, the interpretation of which lies at the heart of this appeal.Under the Deed, Ross agreed that Chrissie could call for "an allotment of up to10 acres in the area known as the camping grounds near the main road". The Deedprovided that this area could be transferred to Chrissie as long as the local authority consent to its subdivision from the principal block was obtained during the joint lives of Ross and herself.[6] Chrissie's evidence, accepted by the High Court Judge, was that she called for 10 acres in 1991. She understood this would include the camping ground as well as the larger area in which the clay patch was located. She did not take any formal steps to enforce her interest in the 10 acres until 2005 when she lodged a caveat. In 2006 she applied for a subdivision consent in respect of the 10 acres she claimed. Although Chrissie obtained consent for the subdivision, Ross refused to transfer the land to her, maintaining she was only ever entitled to the land known as the camping ground. It is common ground that the camping ground has an area much less than the 10 acres referred to in both the Will and the Deed. It has been recently surveyedand has an area of two hectares or approximately five acres. At the time of the Deed, Ross understood the land area of the camping ground was between five and six acres.[7] Two other matters are relevant for present purposes. First, Ross and his first wife Maria separated in 1999. A house (known as the White House) was moved onto part of the 10 acre area claimed by Chrissie. It was located on part of the higher land in which the clay patch is located. In 2004, the year before Chrissie lodged her first caveat, Ross and Maria entered into an informal agreement purporting to give Maria a life interest in the White House and the quarter acre of land around it. The White House was initially let but Maria now lives there. The second relevant fact is that Ross died unexpectedly in 2008. He had earlier married Vicky who is the administrator of his intestate estate. She lives on the principal block in the house she and Ross formerly occupied. Maria and Vicky are the appellants in this appeal.[8] In the High Court, Chrissie alleged that Ross's refusal to transfer the 10 acres to her was a breach of the Deed or amounted to a breach of trust. She sought an order for specific performance and the transfer of the land to her. Maria counter-claimed for a declaration that she had an equitable interest in the White House and surrounding land that took priority over any interest that Chrissie might have in the land. Vicky also counter-claimed for a declaration that the whole of the principal block, including the area claimed by Chrissie, should vest in her to the extent of one-third and in Ross's children to the extent of two-thirds under the Administration Act 1969.[9] There were two principal defences to Chrissie's claim:(a) On the true interpretation of the Deed, she was not entitled to any more than the camping ground itself.(b) If she were entitled to 10 acres, the area of the land was not sufficiently defined to be enforceable by court order.[10] Other defences raised included laches (delay), hardship, and other issues making it inequitable to grant relief. There were also various claims andcounter-claims for an accounting of profit and compensation which need not be detailed at this stage.[11] In the High Court, Courtney J upheld Chrissie's claim.1 She made an order for specific performance requiring Vicky to convey to Chrissie the lot comprising 4.047 hectares (10 acres) for which she had obtained subdivisional approval. The counter-claims by Maria and Vicky were dismissed. The Judge also dismissedChrissie's claim for equitable compensation (sought in addition to specificperformance) and Maria's claim for compensation for work done on the WhiteHouse.[12] Finally, the Judge found that Ross (or more precisely his intestate estate) was responsible for the costs of the subdivision necessary to provide Chrissie her 10 acres.The issues[13] The issues on appeal are somewhat narrower than those in the High Court. In particular, Ms Grant on behalf of the appellants accepted that, if we were to concludethat the Judge's interpretation of the Deed was correct and that the land area was sufficiently defined, the other grounds raised in the High Court in opposition to an order for specific performance were not pursued on appeal. For her part, Chrissie has not appealed against the dismissal of her claim for equitable compensation in addition to an order for specific performance. However, Maria maintained an appeal against the refusal of compensation for money she spent on the White House.[14] Mr Thompson also advanced an alternative argument on Chrissie's behalf.He submitted that if her claim failed, she was still entitled to her effective life interest in the 10 acres under cl 7 of the Will.[15] A last minute application for leave to adduce further evidence on appeal was made by the appellants. We will deal with that at the end of this judgment.[16] The issues may therefore be defined in these terms:1 Bethell v Bethell [2013] NZHC 3492.(a) What area of land was Chrissie entitled to under the Deed?(b) What were the respective rights and obligations of Chrissie and Ross under the Deed?(c) Does Maria have any interest in the White House and the quarter acreof surrounding land in priority to Chrissie's rights or any entitlementto compensation?(d) Who is responsible for the costs of the subdivision for Chrissie'sallotment?(e) If the appeal succeeds, does Chrissie have a claim nevertheless to a life interest in the land under the Will?The evidence in more detail[17] It must be said at the outset that the evidence in the High Court, particularly that adduced by the appellants, ranged over an unacceptably wide area. Much of it was irrelevant to the issues and reflected the bitterness of the dispute between the parties. There was also evidence of the subjective intentions of family members which the Judge rightly rejected as inadmissible for the purposes of interpreting the Deed. The case graphically illustrates the risks inherent in the indiscriminate introduction of extrinsic evidence beyond the terms of the documents the interpretation of which is at issue. We confine ourselves to the facts which we regard as relevant and admissible for the purposes of construction of the Deed and the other issues we are called upon to determine.[18] The camping ground acquired its name as such among the family because John had hoped to be able to establish a commercial camping ground and shop on that site. The parties accepted that Chrissie had a special connection with that area because of the time she spent working with her mother in a makeshift shop in a caravan parked near the beach and, later, on the camping ground. The camping ground is the only convenient access to the rest of the principal block including thehouses occupied by Vicky and Maria. Chrissie's subdivision consent provides for alegal right of way across her 10 acre allotment to the remainder of the principal block.John's Will[19] The Judge described the effect of John's Will in these terms:[18] Under the will Ross was to inherit the principal block subject toprovision for Chrissie of a block described only as "ten (10) acres more orless together with the camp shop buildings thereon (if any)". Trudy receivedthe homestead, which stood on a separate title. Trudy and Margaret were each to receive five acres from land to be subdivided behind the McKaysubdivision. Margaret inherited John's interest in sections that he and his brother, Francis Bethell, owned in another part of Bethells Beach.[19] The provision made for Chrissie in relation to the ten acres had two limbs. Under clause 7 Chrissie was to receive a life interest in the area described. Clause 8, however, provided that if consent to subdivide that area could be obtained Chrissie could take it outright. If that happened cl 7 would have no effect. However, cl 10 provided for a different distribution if consent to subdivide was not obtained within three months of probate.[20] The relevant provisions of the Will were:26. I GIVE DEVISE AND BEQUEATH my farm property comprising 815 acres more or less to my son ROSS McKAY BETHELL free of all duties SUBJECT TO the tenancy created in Clause 7 hereof and the provisions of Clause 8 hereof and SUBJECT TO all royalties/monies from the sale of pines after all expenses taken such royalties/monies to be for such of them my children as survive me and if more than one tenants in common in equal shares for so long as my son ROSS McKAY BETHELL owns the property.7. SUBJECT TO Clause 8 hereof I DIRECT that a portion of the land contained in the farm property referred to in Clause 6 hereof andcomprising ten (10) acres more or less together with the camp and shop buildings thereon (if any) is to be and is hereby let to my daughter CHRISTINE ANNE BETHELL during her lifetime at an annual rental of ONE DOLLAR ($1.00) to the end that my son ROSS McKAY BETHELL shall take the bequest contained in Clause 6 SUBJECT TO the life tenancy granted herein.8. I DIRECT that the area of land behind the McKAY sub-division be divided so that the following areas are transferred to the person named hereunder:-2 Emphasis added.(a) Ten acres to my daughter CHRISTINE ANNE BETHELL being the same land referred to in Clause 7 herein and if so sub-divided of my main block Clause 7 need no longer have any effect.(b) Five acres for my daughter MARGARET ELAINE PARKES.(c) Five acres for my daughter TRUDY JEAN BETHELL.9. I GIVE DEVISE AND BEQUEATH my 2.5 acres (Lot 5), remaining sub-divided sections and sections held jointly with my brother FRANCIS PETER BETHELL unto my trustees UPON TRUST to sell the same and from the proceeds thereof to pay my just debts funeral and testamentary expenses and all duties payable in respect of my dutiable estate (both actual and notional) and to stand possessed of the residue for such of my children, MARGARET ELAINE PARKES, ROSS McKAY BETHELL, TRUDY JEAN BETHELL and CHRISTINE ANNE BETHELL as survive me and if more than one as tenants in common in equal shares.10. If after a period of three months from the Grant of Probate in my Estate approvals for the sub-division in Clause 8 herein have not been given whether or not the Executors have lodged applications or even instructed a surveyor or approached the Council then I DIRECT my land property be distributed as follows:-(a) to my son ROSS McKAY BETHELL my farm property comprising 815 acres absolutely.(b) to my daughter TRUDY JEAN BETHELL my home property pursuant to Clause 5 herein(c) to my daughter CHRISTINE ANNE BETHELL my 2.5 acres (Lot 5) and half the sale proceeds from the sale of my remaining sub-division sections.(d) to my daughter MARGARET ELAINE PARKES my interest in sections held jointly with my brother FRANCIS PETER BETHELL and the other half of the sale proceeds from the sale of my remaining sub-division sections.[21] It became apparent soon after John's death in December 1985 that there weredifficulties arising from the terms of his Will. First, some assets had been omitted. Secondly, a legal opinion had been given to the effect that cl 9 of the Will would continue to have effect whether or not the subdivision contemplated by cl 10 proceeded. The executors of the Will considered this was not the intended effect of clause 9. Ross would receive a disproportionate share of the estate compared to that of his sisters because he would receive both the principal block and a quarter share inthe other property John owned. We also note that clauses 7 and 10(a) conflict with each other.[22] The trustees and executors of John's Will were two partners in the law firmDavenports. Although they applied in 1986 for the subdivision contemplated by cl 8 of the Will, the application was withdrawn after advice from the then local authority that the consent was most unlikely to be granted. Under the district plan and legislation then in force, a specified departure would have been required.The deed of family arrangement[23] Davenports advised that a deed of family arrangement was the best means of resolving the difficulties that had arisen in implementing John's Will. Negotiationsproceeded over some time, partly because Chrissie was then living in England. The Deed was finally completed in 1987.[24] The Deed was executed by the trustees of John's estate and each of John'sfour children. The recitals to the Deed stated:WHEREAS JOHN NEALE BETHELL, Deceased (hereinafter called "the Testator") died on or about the 10th day of December 1985 leaving a Will dated the 15th day of October 1985 (a copy of which is annexed hereto andmarked "A") appointing BERNARD GEORGE ALLEN and DEREK JOHN DALLOW Executors and Trustees of his Estate Probate of the said Will having been granted out of the High Court of New Zealand to the said Executors and Trustees on the 12th day of February 1986AND WHEREAS all the Beneficiaries are sui jurisAND WHEREAS doubts have arisen as to the construction of the Will and it is alleged by the Beneficiaries and Trustees that the operation of the said Will may not provide the Beneficiaries with the bequests as the Beneficiaries understood the Testator intended each of the Beneficiaries to receiveAND WHEREAS it is the express wish of all the Beneficiaries that theTestator's testamentary wishes be altered or modified as set out herein inplace of the provisions of the said Will as Probated.AND WHEREAS the Beneficiaries have taken or been given ample opportunity to take independent legal or other advice on the implications of the amendments herein detailed.[25] The substantive provisions of the Deed relevantly provided:1. THAT the Trustees are hereby directed to administer the Estate of the Testator in terms of the aforesaid Will as amended herein in placeof the said Will dated the 15th day of October 1985 (annexed "A")and the Trustees hereby agree to act in accordance with these directions.3. THAT the bequests set out in clause 3 of the said Will shall remain as set out therein.4. THAT the forgiveness set out in clause 4 of the Will shall remain as set out therein.5. THAT the bequest set out in clause 5 of the said Will shall remain as set out therein.6. THAT the said Will shall be amended/clarified as set out herein:(i) That the said ROSS McKAY BETHELL shall receive the principal farm property more particularly described in Certificate of Title 6B/653 subject to the said CHRISTINE ANNE RICKARD being entitled to call for, at any time, an allotment up to 10 acres in the area known as the camping grounds near the main road and the said ROSS McKAY BETHELL shall sign such survey plans, Memorandum of Transfer or other documentation to enable the said CHRISTINE ANNE RICKARD to receive the said area,subject to the local authority's approval provided that suchapproval can be obtained at any time during the period of the joint lives of the said ROSS and CHRISTINE.(ii) That CHRISTINE ANNE RICKARD is to have transferred to her the property known as Lot 5 being 2.5 acres and a one-half interest in the remaining subdivision sections being Lots 29, 30, 34, 35 and 38.(iii) That the said MARGARET ELAINE PARKES is to have transferred to her a one-half interest in the said Lots 29, 30, 34, 35 and 38, together with all or any interest held by the late JOHN NEALE BETHELL in those properties in the Tasman View Road subdivision jointly held with FRANCIS PETER BETHELL.(iv) That any cash resources, both existing and from any future moneys received, are to be used first in covering any accountant/legal costs of the Estate, secondly on settlement of a balance outstanding to the said FRANCIS PETER BETHELL up to a sum not exceeding $7,500.00 and thirdly, any balance divided in thirds between the said MARGARET ELAINE PARKES, TRUDY JEAN BETHELL and CHRISTINE ANNE RICKARD.(v) It is hereby agreed by ROSS McKAY BETHELL that in the event of any transfer/s of any part/s or the whole of theprincipal block of land inherited by him other than that referred to going to CHRISTINE in clause (i) and (ii) herein, he shall pay to each of the said TRUDY, CHRISTINE and MARGARET the nett balance from the said sale/s or transfer/s moneys up to the sum of $31,500.00 to each of the said TRUDY, CHRISTINE and MARGARET. In the event of there being insufficient funds from any one of such sale/s or transfer/s the nett sale proceeds shall be paid equally to CHRISTINE, MARGARET and TRUDY and the balance shall be paid from any further sale/s, or transfer/s until each of the said CHRISTINE, MARGARET and TRUDY have received the sum of $31,500.00. In the event of a transfer being for less than the market value then ROSS shall be required to account up to the market value in payment of the said balance owing to CHRISTINE, MARGARET and TRUDY. Such obligation on the said ROSS shall not be a debt upon his estate, however the benefit from the moneys shall be payable to the Estates of the said TRUDY, CHRISTINE or MARGARET in the event of either of them pre-deceasing the said ROSS.[26] For present purposes, the main focus of the case is on cl 6(i). The sections referred to in cl 6(ii) and (iii) were already in separate titles arising from previous subdivisions and did not require any resource consent. Clause 6(v) also assumes significance because Ms Grant submitted it meant that Ross was free to sell all orpart of the principal block at any time with the consequence that Chrissie's rightsunder cl 6(i) would come to an end unless she had by that time obtained the subdivision consent contemplated by cl 6(i).(a) What area of land was Chrissie entitled to under the Deed?The approach to interpretation adopted in the High Court[27] The Judge held that the Deed was to be interpreted according to the principles described by Lord Hoffman in Investors Compensation Scheme Ltd v West Bromwich Building Society, adopted by our Supreme Court in Vector Gas Ltd v Bay of Plenty Energy Ltd.3 The Judge summarised these principles in these terms:[27] the interpretation of a commercial agreement is the ascertainmentof the meaning it would convey to a reasonable person who had all the3 Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444 at [61] citingInvestors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 912–913 (HL).background knowledge that would reasonably have been available to the parties in the situation in which they were at the time of the contract. The language used is generally given its natural and ordinary meaning. However, the background facts may suggest that the language used does not accurately reflect the intention of the parties.[28] The Judge went on to consider whether evidence relating to pre-contractual negotiations and declarations of subjective intent was admissible as part of the"factual matrix". She drew attention to the distinction drawn by Tipping J in Vectorbetween the subjective intent of negotiations and evidence derived from negotiations which shows objectively the meaning the parties intended their words to convey.4Such evidence could include the circumstances in which the contract was entered into and any objectively apparent consensus as to the meaning operating between theparties. Evidence of a party's subjective intention was not relevant to an objectiveresolution of interpretation issues.[29] Courtney J also referred to Tipping J's discussion in Vector about comments he had made earlier in Wholesale Distributors Ltd v Gibbons Holdings Ltd as to the relevance of subsequent conduct to the interpretation of a contract.5 In Vector, Tipping J said that:6The key point is that extrinsic evidence is admissible if it tends to establish a fact or circumstance capable of demonstrating objectively what meaning both or all parties intended their words to bear.[30] Courtney J's approach was summarised in these terms:[30] I therefore proceed on the basis that evidence of pre-contractual negotiations is inadmissible and statements of subjective intent made either before or after the deed was executed are inadmissible in the search for theparties' intentions. However, objective evidence of the facts andcircumstances surrounding the negotiations may be considered.[31] She began her consideration of the interpretation of cl 6(i) on this basis:[31] On its face the area referred to in clause 6(i) would be limited to the camping ground because, when used as a preposition in relation to a place,"in" means "within the limits or bounds of". But this interpretation is put in4 At [27]–[29].5 Vector, above n 3, at [30]–[31] citing Wholesale Distributors Ltd v Gibbons Holdings Ltd [2007] NZSC 37, [2008] 1 NZLR 277 at [52]–[53].6 At [31].doubt once it is known that the camping ground is much less than ten acres and even more so when one considers the background to the deed.(Footnote omitted)[32] The Judge then went on to consider a number of factors she considered relevant before concluding that:7 the overwhelming weight of the evidence is that the parties intended toconfer on Chrissie rights in respect of an area of ten acres that took in the camping ground and the clay patch.Discussion of the interpretation approach[33] The Judge correctly determined that the reference to 10 acres in the Deed wasdrawn from the terms of John's Will. She was satisfied that the parties to the Deedintended to retain the meaning of this phrase as it was used in the Will. The Judge considered that the reference to 10 acres in the Will constituted background knowledge available to the parties at the time of entering the Deed. We agree.[34] We agree with the Judge that both the Will and the Deed must be read together. That follows inevitably because the whole purpose of the Deed was to modify, clarify or confirm the terms of the Will. Some provisions of the Will remain (particularly those in cls 3, 4 and 5) while others were said to be amended or clarified by the Deed. Notably, cl 6 fell into this last category although the extent to which cl 6 amended, clarified or replaced provisions of the Will was a matter of debate before us.[35] The Judge did not refer to the principles relating to construction of a will. It is well settled that, in construing a will, the object of the court is to ascertain the intention of the testator as expressed in his or her will when read as a whole in the light of any extrinsic evidence admissible for the purpose of its construction.8 The starting point is that a word or a phrase is given its usual or ordinary meaning.97 Bethell, above n 1, at [44].8 John G Ross Martyn and others Theobald on Wills (17th ed, Sweet & Maxwell, London, 2010) at 285; GE Dal Pont and KF Mackie Law of Succession (LexisNexis, Australia, 2013) at [8.4];Laws of New Zealand Wills at [164].9 Dal Pont and Mackie, above n 8, at [8.6] citing Abbot v Middleton (1858) 7 HL Cas 68 at 114, 11 ER 28 at 46.However, where there is ambiguity, the court is entitled to "sit in the testator's armchair":10to put itself in the position of the testator and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words.[36] The subject-matter of the gift described by the testator must be ascertainable and capable of being disposed of by the will of the testator, or, if not, the gift may be validated under the equitable doctrine of election, or otherwise.11 A testamentary disposition is only void for uncertainty if it is utterly impossible to put a meaning on it; it is not enough that there are difficulties in interpreting a disposition that is ambiguously expressed.12 The court will endeavour to give effect to the testator'sintention including determining the scope of the will provision itself where necessary.13[37] We also consider that in construing a deed of family arrangement which sets out to modify the terms of a will, an approach more akin to that adopted in the construction of a will should be considered. Such an approach would give weight toJohn's original intention to provide Chrissie with 10 acres of land either as anoutright gift or, if subdivision consent could not be obtained, by way of a life interest. We accept that approach would be subject to any contrary intention evident from the terms of the Deed.[38] Our attention has been drawn to a recent decision of the Supreme Court of the United Kingdom in which it has been held the approach to interpreting wills10 Dal Pont and Mackie, above n 8, at [8.39], citing Allgood v Blake (1873) LR 8 Ex 160 at 162 (Exch) and Perrin v Morgan [1943] AC 399 at 414 (HL).11 Laws of New Zealand Wills at [14] citing Andrew Alston Garrow & Alston Law of Wills and Administration (5th ed, Butterworths, Wellington, 1984) at ch 2.12 Laws of New Zealand Wills at [241] citing Re Roberts (1881) 19 Ch d 520 (CA) at 529; Heenan v Heenan (1839) 12 NZLR 111 (SC); Francis Barlow, Christopher Sherrin and Richard Wallington (eds) Williams on Wills (9th ed, LexisNexis, United Kingdom, 2008) at [53.1].13 Williams on Wills, above n 12, at [49.1] citing Baker v Baker (1858) 6 HL Cas 616 at 622;Hickling v Fair [1899] AC 15 (HL) at 27 and Doe d Hickman v Haslewood (1837) 6 Ad & El 167 at 174, 122 ER 63 (KB). See also Talbot v Talbot [1968] 1 Ch (CA).should be the same as that for interpreting commercial contracts.14 In our view, whether this case is approached on the basis of the principles applicable to will construction or by applying principles conventionally applied to the construction of commercial contracts, the background facts known to the parties at the time of the Will and the Deed are relevant. Prominent amongst these is the undisputed evidence that John, Ross, Chrissie and Trudy all knew that the camping ground was much lessthan 10 acres in area. The Judge's findings on this point were:[38] I find, further, that when John made the reported references to ten acres, he knew very well how much ten acres was and that the camping ground was much less than that. John had worked on the land his whole life. He had undertaken subdivisions in the area, worked with surveyors for that purpose, and dealt with the Council in relation to them. I do not accept that John was confused about how big the camping ground was.[39] I am also satisfied that Ross, who had worked on and managed the land with his father since 1980, knew that the camping ground was less than ten acres. It is likely that Chrissie and Trudy also knew; Trudy gave evidence of John teaching them to measure land by pacing it out. I did not hear from Margaret and so cannot make any finding regarding the extent of her knowledge.[39] Ms Grant acknowledged that Ross believed at the time of the Deed the area of the camping ground itself was between five and six acres. His assessment has proved to be accurate since, as earlier noted, the recent survey shows it has an area of only approximately five acres.[40] Clause 7 of the Will is clear that the lifetime interest conferred upon Chrissiewas to comprise "ten (10) acres more or less together with the camp and shop buildings thereon (if any) ". We do not view this as meaning that the camp andany shop buildings thereon were to be additional to the 10 acres and this was not suggested by any party. Rather, we interpret this phrase as meaning 10 acres including the camp and any shop buildings thereon. In other words, the 10 acres to be let to Chrissie during her lifetime at a nominal rental was to comprise a total of 10 acres (more or less) and was not confined to the smaller area the family knew as the camping ground itself.14 Marley v Rawlings [2014] UKSC 2, at [17]–[26].[41] In terms of cl 8 of the Will, if the area of land behind the McKay subdivision could be subdivided then Chrissie was to receive absolutely the 10 acres "being the same land referred to in Clause 7 herein". Clause 8 also provided for five acres tobe given to each of Margaret and Trudy in the event the land could be subdivided.[42] We agree with the Judge that the reference in cl 6(i) of the Deed to "anallotment up to 10 acres " was intended to have the same meaning as the 10 acresreferred to in the Will. However, we do not agree with the Judge's prima facie view that the reference to 10 acres "in the area known as the camping grounds near the main road" meant "within the limits or bounds of" the camping grounds itself. Readin the context of the provision made for Christine in the Will and the knowledge the family had that the camping ground itself comprised much less than 10 acres, we consider it is plain that the reference to "an allotment of up to 10 acres in the area known as the camping grounds near the main road" referred to an allotment of up tothat size in the vicinity of the camping grounds.[43] Two points are obvious. First, since the key members of the family knew full well that the area of the camping ground itself was much less than 10 acres, a smallerarea would have been specified if Chrissie's interest was to be limited to the campingground itself. Second, and perhaps more importantly, if the interpretation advanced by the appellants had been intended, then the Deed could have referred simply to an allotment of the area known as the camping ground. Since the physical boundaries of the camping ground were reasonably well defined, there would have been no need to refer to its area in terms of acres at all.[44] If it were necessary to extend beyond the terms of the Will and the Deed and the limited extrinsic facts we have mentioned, then we agree with the Judge that other extrinsic evidence strongly supported her conclusion on the interpretation of the Deed. We do not propose to set these out in detail since they are fully covered in the High Court judgment. However, we briefly summarise the supporting evidence relied upon by the Judge: The reference to 10 acres for Chrissie from the principal block was first included in a draft Will prepared for John in 1982 following a family meeting after the death of his wife in 1980. Chrissie's unchallenged evidence was that John wanted her to have a 10 acre block at the camping ground area forming part of the principal block. After the family meeting in 1980 she and John had walked over the land including the clay patch which Chrissie told him she wished to secure so that she could build a house in that area. Her father had confirmed the camping ground area would be included to provide her with an income either from the camping ground and/or the shop and her bequest would also include the clay patch area so she would have a building site. Chrissie's evidence on this point was confirmed by her sister Trudy. John's long-time friend, Alan Towler, said John had confirmed to him several times that Chrissie was to receive a 10 acre block. After John's death, the executors under his Will applied for planning consent to enable the subdivision of part of the principal block to provide titles for one 10 acre block and two 5 acre blocks in an area that included the camping ground, the wider clay patch area and an area immediately behind the McKay subdivision. The legal advice regarding the Deed consistently used the phrase"10 acres" and there was never any suggestion in the negotiationsleading to the Deed that the reference to 10 acres should be revisited.[45] We would add that Ross wrote to Chrissie on 27 April 1986 when she was in England regarding the terms of the proposed deed of family arrangement. In thatletter, Ross proposed (amongst other things) that Chrissie would "have a life tenancy on the shop site and the clay pit". He added:This I believe to be what dad intended when he wrote his last will if the 5 and 10 acre subdivision could not go ahead (clause 8).[46] There were some contrary indications to the conclusion the Judge reached about the interpretation of the Will. For example she referred to Maria's evidence ofa conversation in 1985 when she worked with John and Ross planting trees along the border between the camping ground and the area in which the clay patch wascreated. She heard John say that he was putting in trees to define "Chrissie's block".We agree with the Judge that this is not particularly cogent and is overwhelmed by the other factors favouring her interpretation.[47] We were also referred to a letter Davenports wrote to Chrissie dated 4 August 1986 in which it was said she was to receive:An interest in the family agreement that while Ross is the owner of the principal block, Christine can have the right of use of approximately 10 acres known to all members of the family as the area for the camping ground and has the right at any time to have Ross sign applications to the Council and/or a Transfer of the 10 acre block to establish a camping ground.[48] This formulation is expressed in terms that do not make much sense and, in any event, in terms that did not find their way into the Deed.[49] Ms Grant also submitted that the Judge wrongly failed to take into account other evidence after the Deed was signed which she submitted had a bearing on the interpretation of the Deed. We have reviewed the matters raised but we are not satisfied they meet the test of shared or mutual post-contract conduct in the sense identified by Tipping J in Vector.15 In the main, the matters identified reflect the separate and opposing views of the parties as to what they agreed to. We include in this category attempts to rely on what was said on each side at a meeting on 25 September 2005 after the dispute arose. Material of that kind is not admissible and does not assist. Nor do unilateral actions such as Ross moving the White House onto the land claimed by Chrissie. On this issue, the Judge accepted the evidence ofMs Renai Dawson that when she challenged Ross's actions in moving the house ontothe side, he replied that he had done it in such a way that it could be relocated to another site.1615 Vector, above n 3, at [30].16 At [59].[50] We note too the factual finding by the Judge that Chrissie repeated her call for 10 acres several times after the initial call in 1991.[51] We conclude that the Judge was right to determine that Chrissie's entitlementunder cl 6(i) was not limited to the area of the camping ground itself but extended to an allotment of up to 10 acres in that vicinity.(b) What were the respective rights and obligations of Chrissie and Ross under the Deed?Chrissie's rights[52] Chrissie's rights under cl 6(i) of the Deed are susceptible to analysis in bothcontractual and equitable terms. Both causes of action were included in Chrissie'samended statement of claim which was expressed in broad terms. In the High Court, Chrissie argued that she acquired an interest enforceable by specific performance. This proceeded by analogy with a claim for specific performance of an agreement for sale and purchase. On this footing, the Judge applied the well-established principle that a purchaser acquires an equitable interest in the land if the contract is capable of being enforced by specific performance: Attorney-General for England and Wales v R.17[53] The Judge also referred to the decision of this Court in Bevin v Smith.18 That case dealt with a conditional agreement for sale and purchase. This Court held that the equitable estate passes in a conditional contract when equity will, by injunction or otherwise, prevent the vendor from dealing with the property inconsistently withthe contract of sale, i.e. inconsistently with the purchaser's contingent ownership rights.19 It will be sufficient if the court will order specific performance to the contract subject to the contingency.20 The Court stressed that whether the equitable interest has passed will always depend on the terms of the contract itself and that, in the end, equity must act according to the nature of the contract and the practical situation of the parties.17 Attorney-General for England and Wales v R [2002] 2 NZLR 91 (CA) at [94] per Tipping J.18 Bevin v Smith [1994] 3 NZLR 648 (CA).19 Bevin v Smith, above n 18, at 660 citing Re Rudge [1949] NZLR 752 (SC).20 At 665.[54] In this Court, counsel on each side initially accepted that the determination ofChrissie's equitable interest (if any) in the property depended upon the analogy of an agreement for sale and purchase. However, during argument, we explored with counsel whether an alternative approach was more appropriate. The obvious point of difference is that the Deed was not expressed in terms of an agreement for sale and purchase and cl 6(i) does not require Chrissie to provide any consideration. Rather, cl 6(i) simply repeats in modified form the rights to which she was entitled by way of gift under cl 7 or cl 8 of the Will. On that footing, the stricter requirement for an identified parcel of land which applies in the case of an agreement for sale and purchase of land or an option to purchase does not have any direct application.[55] Rather, it is plain from the express language of cl 6(i) that it was intended Chrissie would have distinct elements of choice. First, she was entitled to call for an allotment at any time so long as any subdivisional approval was obtained during the joint lives of Ross and herself. At the time of the Deed in 1987 Ross was 32 and Chrissie was 27. It is common ground that, given the restrictive planning provisions in force at the time, it was unlikely that subdivisional consent could then be obtained. However, there remained the possibility that the rules might in future change such that the approval might be obtained. The clause was clearly intended to allow Chrissie to make her call against that future prospect at any time provided the subdivision consent was obtained during the joint lives of Ross and herself.[56] Secondly, Chrissie had a choice as to the size of the allotment. It could be any area up to a maximum of 10 acres. Thirdly, we consider it is implicit that Chrissie would also have a choice about the shape of the allotment so long as it was within the vicinity of the camping grounds near the main road and provided the area was no greater than 10 acres. There is nothing in cl 6(i) to suggest that Chrissie wasrequired to obtain Ross's consent to either the size or shape of the land she called for.Again, an approach more consistent with that adopted in interpreting a will is appropriate.[57] We consider that Chrissie's right to choose or elect the final shape of the10 acres is also supported by settled principles applicable to will construction and, by analogy, to a deed of family arrangement modifying a will. Although not on allfours with the present case, the extent to which the courts will uphold a gift made bywill expressed in general terms is illustrated by Stanton J's decision In re Fenwick (Deceased).21 Stanton J noted the rule expressed in the 1951 edition of Jarman on Wills:22Where the gift comprises a definite portion of a larger quantity, it is not rendered nugatory by the omission of the testator to point out the specific part which is to form such portion, the devisee or legatee being in such case entitled to select; by which means the subject of the gift is reducible tocertainty; and "id certum est quod certum reddi potest"23 is a settled rule in the construction of wills. Thus, if a man devise two acres out of four acres that lie together, it is said that this is a good devise, and the devisee shall elect.So, if a testator devise a messuage, and ten acres of land surrounding it, part of a larger number of acres, the choice of such ten acres is in the devisee.[58] Similarly, in relation to a deed, Young J upheld undefined mining or quarrying rights in Ellison v Vukicevic as sufficiently certain.24 The plaintiff's landcomprised approximately 160 acres. Only 10 were suitable for quarrying, and the stone-bearing areas were not identified in the deed. Young J had two responses to this issue: first, on its true construction, the deed gave the defendant the right to choose the acres and nominate them to the plaintiff and thus make the property certain. The second, and what Young J felt was probably the better answer, was thatthe defendant's right extended over the whole land but its activities or operationspursuant to those rights would necessarily be confined to the place where the quarryable stone was. Young J cited a series of authorities for the proposition that a grant of an incorporeal hereditament25 in an area of land with the precise locus to be chosen by the grantee is valid.26[59] Ms Grant relied on two authorities for the proposition that the gift in the deed was not sufficiently ascertained. We consider both are distinguishable. The first wasSavill Bros Ltd v Bethell where the English Court of Appeal did not uphold a vendor21 In re Fenwick (Deceased) [1957] NZLR 709 (SC).22 Thomas Jarman and Raymond Jennings A Treatise on Wills (8th ed, London, Sweet & Maxwell, 1951) at 477.23 It is certain whatever can be rendered certain.24 Ellison v Vukicevic (1986) 7 NSWLR 104 (NSWSC)25 A heriditament is any kind of property that is capable of being inherited.26 South Eastern Railway Co v Associated Portland Cement Manufacturers (1900) Ltd [1910] 1 Ch 12 (CA); Wellington City Corp v Public Trustee [1921] NZLR 1086 (CA) and Talga Investments Pty Ltd v Tweed Canal Estates Pty Ltd (1974) 1 BPR 9675 (NSWSC).of land reserving a 40 foot strip of land from a conveyance. The purchaser had purported to make an election defining the area.27 The case did not turn on whether the land area was sufficiently ascertained but on the common law principle that a limitation of a freehold estate to commence in the future was void.28 We do not view this case as having any application to a gift in a deed of family arrangement giving a right to call for an area of land that is either ascertained or ascertainable.[60] The second case cited by the appellants was Asten v Asten.29 By his will a testator gave a house and an associated area of land to each of his four sons. The will did not define which house was to go to which son. Romer J held that the gifts must fail since a right of election could not be established by the terms of the will. No such difficulty arises in the present case. We note too that Romer J accepted that extrinsic evidence was, in principle, admissible to establish which house was intended for each son.30[61] Finally, we consider that the court would, if necessary, settle the boundaries of the land itself. This would be consistent with the well-established principle thatthe court will do its best to uphold a testator's intention and, by analogy, theintention expressed in a deed of family arrangement such as that in the present case.[62] We do not accept Ms Grant's submission that cl 6(v) meant that Ross wasentitled to sell all or part of the principal block if this would have the effect ofbringing Chrissie's rights under cl 6(i) to an end unless she had already obtained thesubdivisional consent. That interpretation is not sustainable in the light of the explicit exclusion in cl 6(v) of land referred to in cl 6(i) and (ii) as going to Chrissie. Those words make it clear that Ross could not sell the 10 acres to which Chrissie was entitled under cl 6(i) or the other land she was to receive under cl 6(ii).31 Theexclusion of Chrissie's rights to the 10 acres was consistent with John's intentions toprovide the 10 acres to her.27 Savill Bros Ltd v Bethell [1902] 2 Ch 523 (CA).28 At 540.29 Asten v Asten [1894] 3 Ch 260 (Ch).30 At 263.31 In fact, since cl 6(ii) referred to land other than the principal block, it was not necessary to exclude it from a sale under cl 6(v) which related only to the principal block.[63] Ms Grant referred us to a letter sent by Davenports on 3 September 1986 to family members in which it is recorded that Margaret had indicated that if Chrissie got the 10 acres, allowance would have to be made in the event of Ross selling the property in his lifetime. This remark was made over a year before the Deed was signed and there is nothing to suggest it was ever followed through. The clear words of the Deed must prevail.Ross's obligations[64] Ross had both express and implied obligations under cl 6(i). As to express obligations, he was required to sign such survey plans, memorandum of transfer orother documentation "to enable [Chrissie] to receive the said area ", subject to the local authority's approval. Beyond the signing of the plans and relevant documents,Ross had an implied positive obligation to facilitate the allocation and subdivision of the area up to 10 acres for Chrissie when she called for it as the Judge recognised.32Correspondingly, Ross had an implied negative obligation not to do anything that would impede Chrissie from securing the allotment. These implied obligations stem from the express terms of cl 6(i) and by analogy with the well-understood implied obligations in contracts for the sale and purchase of land. These include the implied obligations to take reasonable steps to fulfil a conditional contract.33[65] Finally, we consider Ross also had an implied obligation to hold sufficientland in the vicinity of the camping ground to enable Chrissie's call to beimplemented when she exercised the right to do so. That obligation is properly viewed as part of his obligation to facilitate the allocation and subdivision of the land.[66] It follows that, in refusing to agree to Chrissie having an interest in the land beyond the area of the camping ground itself, Ross breached his contractual obligations under the Deed.32 At [55].33 John Burrows, Jeremy Finn and Stephen Todd Law of Contract in New Zealand (4th ed, Lexis Nexis, Wellington, 2012) at [8.25] and Steele v Serepisos [2006] NZSC 67, [2007] 1 NZLR 1.[67] Alternatively, a similar result follows from an analysis of Ross's equitableobligations arising from the Deed. In view of her finding on the breach of contract, the Judge did not find it necessary to deal in detail with the second cause of action for breach of trust and Mr Thompson did not seek to advance this cause of action on appeal because he considered it added little to a contractual analysis. We agree.[68] We are satisfied that in terms of the Deed, Chrissie's equitable interest arose immediately upon the Deed being signed, irrespective of the fact that she had notthen called for the land nor identified the size and shape of the allotment. Chrissie'sequitable interest was sufficient to support a caveat as recognised in 2005.34 It also provided a sufficient basis to enable her to apply for injunctive relief should Ross endeavour to sell the land or to grant an interest in it which would have priority overChrissie's interests. Similarly if he took any other step that was inconsistent with her entitlement or which would impede its realisation.Summary to this point[69] On our approach, Chrissie's equitable interest in the land first arose upon theexecution of the Deed in 1987 and did not require any further definition at that stage. Her interest at that point was limited to the right to call for the land. When she made her call in 1991, she defined the size of the area she sought up to the maximum of 10 acres. Neither the precise location of the land nor the shape of the lot needed to be defined at that point to be enforceable. Those matters were capable ofascertainment at Chrissie's election (so long as it was in the vicinity of the campingground) or in the manner adopted by the Judge we shortly discuss or by the final determination of the Court if necessary. The precise boundaries were ultimately defined by her application for subdivision and the survey plan that followed after theCouncil's consent.34 This Court upheld Chrissie's entitlement to the caveat when challenged: Bethell v Rickard[2013] NZCA 38.The evidence supporting the Judge's approach to the determination of Chrissie'sinterest in the 10 acres[70] In the High Court and before us, there was much debate about the definition(or lack thereof) of the boundaries of Chrissie's allotment. As noted, on the view wehave taken, there was no need for precise definition. Within the express parameters of cl 6(i) as to maximum size and the location of the land, it was Chrissie's right todefine the shape of the allotment. However, if we are wrong in that view, we consider the size of the allotment was sufficiently defined for the reasons identified by the Judge. An aerial photograph with the allotment imposed was produced inevidence. The logic of the Judge's findings is more readily apparent from thatphotograph.[71] The allotment for which subdivisional consent was sought was generallyrectangular in shape. The essence of Courtney J's reasoning was that three of thefour boundaries were fixed – one by Bethells Road and two by the boundaries of an adjoining property owned by a neighbour. As to the fourth (eastern) boundary, a short section of it was fixed by the location of the western edge of the McKay subdivision. The obvious identification of the fourth boundary would be to draw a straight line (roughly parallel to the opposite long boundary) between the house formerly occupied by Ross and Maria and the western edge of the McKay subdivision. Of course, the overall size of the lot could not exceed 10 acres so this was a controlling factor as well.[72] The Judge found as a fact that Chrissie had specifically sought both the camping ground area and the area in which the clay patch was located. Her call in 1991 for 10 acres meant that, inevitably, she was seeking a greater area of land than the camping ground itself. The Judge also referred to the application for resource consent made in 1986 by the executors of John's Will which we have alreadymentioned.35 Although this identified a wider area, it also embraced the area calledfor by Chrissie. The Judge's reasoning regarding the boundary definition is bestdescribed in her own words:35 At [22].[71] Bethells Road runs along the northern-eastern side of the campingground so that boundary was fixed. A neighbour's property (lot 4 DP 45364)ran along the western side of both the camping ground and the clay patch so that boundary was fixed. The position of the southern boundary, shown onDavenports' plan as a line running east perpendicular from the south-western corner was readily identifiable because the area of clay from which the clay patch took its name was located in that corner; the clay patch would inevitably be delineated by reference to that feature. Finally, the McKay subdivision ran along the eastern side of the camping ground so that boundary was partly fixed. This left only the portion of the eastern boundary between the end of the McKay subdivision and the southern boundary undefined.[72] Ross' house lay just outside the now-approved eastern boundary. Itwas implicit that Chrissie could not have called for land that included Ross'house. So a line up the eastern boundary from the end of the McKay subdivision to a point perpendicular with a straight line across the southernboundary at the rear of the clay patch (as depicted in the Davenports' plan)would produce an area of approximately ten acres that took in the camping ground and the clay patch and did not impinge on Ross' house.[73] Ms Grant made a number of points to support her submission that the boundaries were insufficiently defined for an order for specific performance. For the reasons already stated, in the context of a deed of family arrangement and the specific terms (express and implied) of the Deed, we do not consider such definition was called for. However, if greater definition were needed, we are not persuaded byany of counsel's submissions that the Judge's conclusion on this issue was wrong. A principal point made by Ms Grant was that the Judge was led into error by amisunderstanding of the size of the clay patch. Ms Grant pointed to the Judge'sstatement that:36 there were two relatively flat areas left; approximately four acres known within the family as the camping ground and, immediately behind that, a further approximately six acres known within the family as the clay patch.[74] We do not consider the Judge was in error in describing the clay patch as having approximately six acres. It is perfectly evident from the photographic evidence that the clay patch itself is much smaller than six acres. The Judge had the advantage of a visit to the site and we are satisfied that, when she referred to the clay patch as having an area of six acres, she was referring to the balance of the land beyond the camping ground in which the clay patch was located. She made thisclear, for example, at [71] of her judgment cited above when she referred to "the area36 At [3] and elsewhere.of clay from which the clay patch took its name was located in that [south-western]corner".[75] Ms Grant also drew our attention to a rough plan prepared by Chrissie'ssolicitor after she had lodged a caveat on the title to the principal block in June 2005. There was correspondence with the appellants' solicitors at that time which ultimately resulted in the first caveat being replaced by a second. Chrissie's solicitor emailed the estate's solicitors confirming that she required "the 10 acres known asthe camping ground" transferred to her in accordance with cl 6(i) of the deed of arrangement. The email annexed a marked up copy of the title showing its"approximate location". The email was sent at a time when there werecommunications between the lawyers for the parties attempting to obtain Chrissie'sagreement to the replacement of her first caveat with one more limited in area. The first caveat affected the whole of the land in the title to the principal block although it stated the claim was limited to a then undefined area of 10 acres. Chrissie's solicitor said in a later email that the area shown on the plan he had sent "wasmarked up by the writer and was no more than an informal guess for the purpose ofgetting some clarity on where the land was".[76] The lawyer was not called to give evidence but Chrissie was cross-examined about whether she had given instructions to him when this plan was sent. She agreed she had some discussions with her lawyer about the time the caveats were being discussed but had no specific recollection of any discussion about the plan shown in the relevant email.[77] We are not persuaded that any weight should be given to this point. On our view of the matter, Chrissie was entitled to decide where the boundaries should be drawn within the broad parameters described in the Deed or, alternatively, the boundaries were capable of ascertainment with sufficient precision if required. As ithappens, the lawyer's "informed guess" was broadly similar to the shape of theallotment for which consent was sought and obtained.[78] Ms Grant also argued that the fourth (eastern) boundary did not have to be drawn in a straight line. It could have deviated around natural features of the land solong as, overall, the area of the allotment did not exceed 10 acres. While Mr Thompson conceded this theoretical possibility, he submitted that in the context of a deed of family arrangement, there was no realistic prospect that the family would have misunderstood how the allotment would be defined. We agree with theJudge's ultimate finding that from the time Chrissie called for 10 acres in 1991, Ross knew what area was being claimed with sufficient particularity to have sought Council consent for the subdivision of that area. The allotment would also have been sufficiently defined from 1991 onwards to enable a court to order specific performance on the conventional principles applicable to agreements for sale and purchase.(c) Does Maria have any interest in the White House and the quarter acre of land in priority to Chrissie's rights or any entitlement to compensation?[79] After Ross and Maria separated, they entered into an informal agreementwhich they both signed on 18 May 2004. It purported to be "a full and final propertysettlement after the dissolution of our marriage in February 2001". Although their signatures to the two page agreement were witnessed, there were no solicitors'certificates as required by s 21F of the Property (Relationships) Act 1976. The Judge found that neither party had sought legal assistance in relation to this agreement. For present purposes, cl 2 is the relevant clause. It provided:Maria will take full ownership of the rental property known as the "White House" with a lifetime interest in the land more or less ¼ acre around the"White House", and a right of way access to it up the existing driveway.This is subject to any circumstance or situation where Ross may develop an unresolvable dispute with the tenants of the White house after mediation. And Maria will favourably consider replacement of tenants. Ownership of the White House is subject to Maria also taking ownership of the mortgage at the ASB of $67,000.00 account number 123011-0511600-00 as at February 2004. Maria agrees to repay the mortgage at around $1000.00 per month, in general this is the amount received in rent less interest and expenses as applicable. After the mortgage is discharged any rent or otherincome that is received is entirely for Maria's benefit and at her disposal. Itis noted that the mortgage is secured over Ross Bethells land at 280 Bethells Road being Pt 1A Lot of Waitakere. The White House and ¼ acre environswill revert to the Bethell Family Trust on Maria's death.[80] The agreement went on to refer to other matters and concluded with a statement that Ross would form a family trust. It does not appear that any trust wasultimately formed despite Ross referring to it later in a document he signed shortly before undergoing surgery in July 2007 not long before his death.[81] At the time this agreement was signed, the property was rented but, as earliernoted, Maria moved into the White House in 2009 after Ross's death. Although cl 2 of the agreement refers to Maria having "full ownership of the rental property knownas the White House with a lifetime interest in the land more or less ¼ acre around theWhite House and a right of way access to it up the existing driveway", Ms Grantaccepts that the intention was to grant Maria a life interest in both the house and the surrounding ¼ of land and right of way access. We agree that this appears to be the correct interpretation of what was intended having regard particularly to the last sentence of cl 2.[82] The argument in the High Court proceeded on the basis that this agreement gave Maria an equitable interest in the land. It was submitted that Maria had a prior equitable interest because any interest obtained by Chrissie when she obtained her resource consent did not arise until after the property agreement of 18 May 2004.[83] The Judge adopted the principles guiding the resolution of competing equities as identified by this Court in Perkins v Purea.37 In that case, this Court approved the principles stated by Potter J in Mercury Geotherm Ltd (in rec) v McLachlan.38 The Judge held that Maria had the burden of showing that, taking all the circumstances into account, she had the better equity.[84] Courtney J accepted that Maria did not know about Chrissie's claim when sheentered into the 2004 agreement. She had entered that agreement in good faith and without knowing that Chrissie had already acquired an interest in the same piece ofland. Correspondingly, the Judge found that Chrissie did not know about Maria'sinterest created by the 2004 agreement, probably until about 2011. The Judge also found that if Maria had known of the competing claim to the 10 acres, she would not have agreed to settle with Ross in the terms she did in 2004. Nor would she have37 Perkins v Purea [2009] NZCA 541, (2010) 10 NZCPR 851 at [73].38 Mercury Geotherm Ltd (in rec) v McLachlan [2006] 1 NZLR 258 (HC) at [140].agreed to move the White House onto the property in 1999 if she had known ofChrissie's claim.[85] The Judge went on to find however that Maria's position was not irretrievable. She recorded that Vicky had acknowledged that if Maria's claim did not take priority over Chrissie's claim then Maria would be entitled to claim against Ross's estate. Maria was therefore in the same position as she would have been in2004 had she known of Chrissie's claim.Analysis[86] By virtue of s 21F of the Property (Relationships) Act, the agreement between Ross and Maria in 2004 was void in the absence of a court order to the contrary under s 21H. Irrespective of the validity or otherwise of the agreement for relationship property purposes, we are satisfied Ross had no right to grant Maria aninterest in the property that had priority over Chrissie's entitlement. By purportingto do so, Ross breached his contractual obligations as we have already described.We are satisfied that Maria does not have any equitable interest in Chrissie's allotment that could have priority over Chrissie's claim to both legal and equitabletitle to the land.[87] The consequence for Maria is that she has no entitlement to occupy any part of the allotment for which Chrissie has obtained resource consent. We also conclude that Maria has no entitlement to an interest in the house itself. We were informed by her counsel that, although the house was originally moved onto the site from elsewhere, it has since been permanently fixed to the land. This was supported byMaria's own evidence. She confirmed that earthworks were undertaken to level theland and to provide access; decks and verandahs were established; the house wasconnected to a septic tank and storm water drainage; a bathroom was "internalised"and other improvements added such as a laundry, water-tank and a sleep-out. Maria also confirmed that the house could only be moved with substantial cost anddifficulty. In accordance with established principle, the house must be treated as part of the land in these circumstances.39[88] Ms Grant submitted that Chrissie would be unjustly enriched if she became entitled to the White House which has an agreed valuation of $75,000. She submitted that any order for specific performance should be made on the condition that Chrissie paid to Maria compensation in that amount.[89] We agree with the Judge that this submission must be rejected. Neither Maria nor Ross has any lawful right to the house and, as the Judge found, Ross took acalculated risk when it was moved onto the site. At best, Maria's right (if it hadprevailed) was to a life interest in the house and its surrounding land. We note too that Maria has the right to seek relief against the estate as Vicky acknowledged.[90] Maria also claimed compensation for work she carried out on the White House during the period 2010 to 2013. The Judge rejected these claims on the basis that, although Chrissie and Maria took their respective interests in good faith, Mariaknew of Chrissie's claim within a relatively short time and her position had not been prejudiced. The work had been carried out when Maria knew of Chrissie's claim tothe land on which the White House was established. Counsel had been unable to suggest any principled basis on which compensation could be paid in thecircumstances. We agree with the Judge's conclusion in that respect.(d) Who was responsible for the costs of the subdivision for Chrissie'sallotment?[91] At the time the Deed was executed in 1987, an application for consent to subdivide could be made only by the owner of the land.40 It was not until the passage of the Resource Management Act 1991 that a non-owner could apply for resource consent. The Judge found that the obligations under the Deed were to be interpreted on the basis that the parties knew or were presumed to know that onlyRoss could have sought the Council's approval for subdivision. On that footing, she39 GW Hinde, DW McMorland & NR Campbell Principles of Real Property Law (2nd ed, Lexis Nexis, Wellington, 2014) at [6.034]–[6.036]; Lockwood Buildings Ltd v Trustbank Canterbury Ltd [1995] 1 NZLR 22 (CA).40 Local Government Act 1974, ss 271, 275 and 276.determined that, once Chrissie had called for the land, Ross had an implied obligation to take reasonable steps within a reasonable period to obtain the consent.[92] As it happened, Chrissie sought and obtained the consent herself since, by the time she did so, the law had changed to permit this to occur. We understand thatChrissie has borne most of the costs of obtaining the consent but Ross's estate haspaid for the approval of the survey plan under s 223 of the Resource Management Act. Despite the Judge finding to the contrary, Mr Thompson conceded that thecosts of the subdivision were to Chrissie's account. To the extent that the estate hadincurred expenses in obtaining the consent, he also accepted that Chrissie was obliged to reimburse them, subject to the costs being reasonable.(e) If the appeal succeeds, does Chrissie have a claim nevertheless to a life interest in the land under the Will?[93] Mr Thompson argued in the alternative that, in the event of our finding against Chrissie on the other issues, cl 7 of the Will survived the deed of family arrangement and that, at the least, Chrissie was entitled to rent the 10 acres at a nominal rental for her lifetime. In view of our conclusions, it is unnecessary for us to deal with this point.Application to adduce further evidence[94] As earlier noted, there was a very late application by the appellants for leave to adduce further evidence on appeal. The application was filed on Friday 15 August 2014 with the fixture commencing on Tuesday 19 August 2014. No satisfactory explanation for the delay was given. The respondent had no opportunity to file any affidavit in response and opposed the application.[95] The evidence arose in consequence of discussions that took place in April 2014 which Vicky said she had with the surveyors responsible for the subdivision. In the main, the evidence relates to what was said at these discussions and some previously undisclosed written material as to how the boundaries of the 10 acres were drawn when the subdivision consent was lodged in 2006. Letters attached toVicky's affidavit in support of the application show that her evidence is disputed bythe surveyors. In these circumstances we have no way of resolving that dispute and we are not persuaded that any of it is material to our judgment in any event.[96] There is also reference to some plans prepared by the surveyors in 2008 showing alternative subdivision plans with a smaller area. It is evident that these plans were prepared in an effort by Chrissie to reach a resolution of the dispute. They cannot assist us in the issues we have to decide.[97] Ms Grant relied particularly on the undisputed fact that it emerged during the course of the April 2014 discussions that when a formal survey plan was completed for s 223 purposes, the land area shown on the scheme plan of subdivision was only 9.2 acres. In a letter from the surveyors they explain that the scheme plan was prepared from an aerial photograph and this has resulted in the discrepancy. Nevertheless the consent is for 10 acres and the surveyors' advice is that theboundaries can be adjusted to 10 acres or Chrissie may accept the 9.2 acres shown on the scheme plan. There is nothing material in this point.[98] For these reasons the application by the appellants for leave to adduce further evidence is dismissed.Result[99] For the reasons given the appeal is dismissed, save that the respondent is liable for the reasonable costs of obtaining the subdivision consent.[100] The parties agreed that costs should follow the event and should be fixed for a standard appeal on a Band A basis. Accordingly, the appellants must pay costs to the respondent for a standard appeal on a Band A basis with usual disbursements.Solicitors:Turner Hopkins, Auckland for AppellantsPatterson Hopkins, Auckland for Respondent