	Home \| Databases \| WorldLII \| Search \| Feedback Court of Appeal of New Zealand

Home | Databases | WorldLII | Search | Feedback

Court of Appeal of New Zealand

You are here: NZLII >> Databases >> Court of Appeal of New Zealand >> 2006 >> [2006] NZCA 228

Schist Mountain Orchard Limited v Johnston and anor [2006] NZCA 228 (24 August 2006)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

Schist Mountain Orchard Limited v Johnston and anor [2006] NZCA 228 (24 August 2006)

Last Updated: 29 August 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA99/05

BETWEEN SCHIST MOUNTAIN ORCHARD LIMITED
Appellant

AND HAYDEN MATTHEW JOHNSTON
First Respondent

AND EARNSCLEUGH VINEYARDS LIMITED
Second Respondent

Hearing: 1 August 2006

Court: William Young P, Robertson and Arnold JJ

Counsel: C S Withnall QC and J A Farrow for Appellant
L A Andersen for Respondents

Judgment: 24 August 2006 at 11am

JUDGMENT OF THE COURT

A The appeal is allowed.
B We grant a decree for specific performance requiring the respondents to transfer Lot 2 to the appellant or its nominee without additional consideration. Any issues as to implementation are to be resolved in the High Court.
C The appellant’s claim for damages is remitted to the High Court for determination.
D The appellant is entitled to costs in this Court of $6,000 together with usual disbursements (for two counsel). The costs order in the High Court is set aside with costs in favour of the appellant to be fixed in that Court.

REASONS OF THE COURT
(Given by William Young P)

Introduction

[1] In March 2002, Schist Mountain Orchard Ltd sold land to Mr Hayden Johnston on the basis that a portion of it would be transferred back, at no consideration, once a subdivision consent was obtained. A subdivision consent was duly obtained but on terms which Mr Johnston does not accept and he has declined to transfer the relevant portion of the land. A claim by Schist for specific performance was dismissed by John Hansen J in a judgment which he delivered on 5 May 2005. Schist now appeals against that judgment.

The facts

[2] The case concerns property in Blackman Gully, near Alexandra in Central Otago. The land which is primarily relevant to the case was in one title, but comprised two lots, a front lot (Lot 3) and rear lot (Lot 2). This is the land which was sold by Schist to Mr Johnston. An associated company, Schist Mountain Forest and Viticulture Limited, owned land which is adjacent to Lot 2. We will refer to this as "the adjoining land". This land too was sold to Mr Johnston. The second respondent, Earnscleugh Vineyards Limited was Mr Johnston’s vehicle for purchasing the land. For convenience, however, we will refer to Mr Johnston as being the purchaser.
[3] The two vendor companies were controlled by Michael and Joy Wilson. In the normal course of events, the Wilsons would have created separate titles for Lots 2 and 3 and would then have sold Lot 3 and the adjoining property to Mr Johnston. But because of time constraints, the parties decided to structure the deal so that all of the land would be transferred to Mr Johnston, subject to an obligation to retransfer Lot 2 back to Schist after the Central Otago District Council had approved a subdivision and issued a new title for that land.
[4] The critical agreement was entered into on 7 March 2002 and provided for settlement on 28 March 2002. The agreement on its front page referred only to Lot 3 as being subject to the sale and specified the sale price as being $225,000 plus GST. The contract went on to provide, in the event that Lot 2 was not transferred back to Schist, the purchase price would be increased to $275,000 plus GST.
[5] As at March 2002, physical access to Lot 2 was provided along a gravel driveway approximately three metres wide which ran generally along the western side of Lot 3. The parties envisaged that there would be an easement in favour of Lot 2 which would permit the use of this driveway as a means of access and that services for Lot 2 would be provided in the same general area.
[6] The relevant clauses in the contract were in these terms:

16. Subdivision and Easements
16.1 If:
(a) [Schist] obtains, from the Central Otago District Council, within 6 weeks of the date of this Agreement or such additional time required by the District Council, or Environment Court if the Council’s decision is appealed, to make its decision, consent to the subdivision of the land into Lot 3 DP 6141 and Lot 2 DP 20313 (highlighted on the attached plan) ("Lot 2") and the building of a dwelling on Lot 2, all on conditions acceptable to the Vendor;
...
then
(c) the property sold and purchased under this Agreement shall exclude Lot 2 which is to be subdivided off CT 12C/1117. In such case, the purchase price for the property shall be as stated on the front page of this Agreement and because the subdivision and the issue of separate titles will not be able to be concluded by the settlement date, on settlement, all of the land in CT 12C/1117 is to be transferred to the Purchaser and the Purchaser covenants to transfer back to [Schist] or its nominee, without any payment, the title to Lot 2 immediately upon a separate title being issued and the following clauses in this section 16 shall apply.
...
16.3 [Schist] shall ensure that the subdivision work referred to in this clause 16 shall be undertaken diligently and without delay.
...
16.5 Lot 2 shall be transferred to [Schist] or its nominee, together with the following easements over Lot 3 DP 6141:
(a) A right of way down the existing driveway coloured pink on the attached plan. The maintenance and repair costs to be shared by the owners of the servient and dominant tenement according to use but with each party to repair their own damage;
...
(c) A right to convey telecommunications underground along the line coloured pink on the attached plan;
...
16.6 The easements referred to above to be included on the survey plan of the subdivision of Lot 2 and to be incorporated into the transfer of Lot 2 to [Schist] or nominee, or an easement certificate, prepared by [Schist’s] lawyers, incorporating the above terms and to otherwise be of a standard form used by solicitors practising in Central Otago and to be approved by the Purchaser, which approval shall not be unreasonably withheld. Each party shall meet their own legal costs and [Schist] shall meet the registration costs of the easements over, or appurtenant to, Lot 2.
...
16.8 Both parties shall sign and do all things necessary to give effect to this clause 16 and to register the documents referred to.
16.9 The Purchaser shall not object to the subdivision application and land use application referred to in clause 16.1(a) ... .
17. Non Approval of Subdivision
17.1 If [Schist] is unable to obtain the subdivision approval referred to in paragraph (a) of clause 16.1 ... then:
(a) [Schist] shall immediately notify the Purchaser of this; and
(b) the property which is sold and purchased under this Agreement shall be of all the land in CT 12C/1117 and this agreement shall be varied as follows:
(i) The purchase price shall be $275,000.00 plus GST.
...
(iii) Clauses 16.1 to 16.6 (inclusive) and clause 16.8 shall no longer apply.

[7] We have set out only those provisions of the agreement which are directly relevant to the appeal. But the agreement also provided for an easement over Lot 2 in favour of the adjoining land which Mr Johnston acquired. As well, Schist was required to meet all costs associated with the subdivision.
[8] Before settlement, Mr Johnston sought to increase the width of the right of way to the adjoining land to ten metres. Schist agreed to this.
[9] The surveyor (Mr Weller) responsible for the subdivision took the view that the easement over Lot 3 should also be ten metres wide. In part this was related to the agreed width of the other easement. As well, it would not have been practicable to define the easement over Lot 3 solely by reference to the course of the existing driveway. The driveway was not of uniform width. Nor was it completely straight. Legal definition of the easement by reference to the driveway would have involved a significant pegging exercise which, in all probability, would have been wasted as it was not very likely that the Council would have approved the subdivision with so narrow a legal access way, particularly as the standards laid down in its district plan provided for a six metre easement and a four metre carriageway.
[10] The surveyor accordingly drew the plan of subdivision on the basis that the easement over Lot 3 was to be ten metres. Mrs Wilson took the plan and a consent form to Mr Johnston and he signed both documents. The consent form signed by Mr Johnston recorded:

I/We confirm that I/We have viewed the plans and supporting information and understand the nature/scope of the consent being sought.
(An A4 copy of the plan must be signed and attached to this consent)

[11] Mr Johnston signed directly under those words. As noted, he also signed the plan.
[12] The Judge found that Mr Johnston did not appreciate that the easement over Lot 3 was to be ten metres wide. This finding of fact was not challenged on appeal. Indeed it is very likely that that Mr Johnson was under some such misapprehension because, prior to the hearing of the application for the subdivision consent, he indicated that he did not agree to the carriageway being wider than the existing driveway or to "stormwater disposal water tables" intruding outside "the current right of way". On the other hand, when he signed the plan, he signified, in a manner which was legally effective from the point of view of the subdivision process, that he agreed to an easement that was ten metres wide.
[13] The Council eventually approved the subdivision subject to the following conditions:

5 The existing gravel track in right of way easement A shall be formed to the boundary with Lot 1 [Lot 2] to the following standard:-
(a) The carriageway shall have a minimum width of 3.0 metres.

(b) Basecourse to be 150 mm AP 65 incorporating an approved well graded material or equivalent gravel sourced from a local pit supply.

(d) Appropriately sized culverts shall be provided where the carriageway passes over water races.

The "shallow trafficable water tables" on each side of the carriageway will each have to be approximately one metre wide. So the total surface area to be occupied by the carriageway (including the shallow trafficable water tables) will be in the order of five metres.

[14] The Council’s decision on the subdivision consent was released on 19 July 2002. By fax of 22 July 2002, a copy of the decision was sent by Schist’s solicitors to the solicitors acting for Mr Johnston. The fax recorded that clause 16.1(a) was satisfied. After referring to another clause in the agreement the fax went on:

Accordingly, the sub-division shall proceed. For the record, please confirm your client’s acceptance of this situation.
...
As I interpret the Sale and Purchase Agreement, the sub-division conditions are only required to be approved by the vendor and not also the purchaser. However, if you disagree with this interpretation and if your client has any valid objection to any of the conditions, would you please provide us with your arguments on this. Note that our client has fifteen working days from receipt of the decision dated 19 July 2002, in which to appeal any condition. You would therefore need to advise us of any valid concern regarding conditions and legal capacity under the Sale and Purchase Agreement for your client to object, within sufficient time to enable our client to appeal such condition to the Environment Court.

[15] The appellant’s solicitors did not receive an immediate response and sent a chasing up email on Friday, 9 August. In this email the solicitors asked:

Could you please let us know by return e-mail whether or not your client intends disputing the sub-division decision, having regard to our opinion that the Sale and Purchase Agreement does not provide that the sub-division conditions be approved by the Purchaser.

[16] The same day Mr Johnston’s solicitor replied succinctly by saying:

He does not.

[17] No particular difficulty arose with the transaction until 16 September 2002 when Mr Johnston’s solicitor notified the appellant’s solicitor by email as follows:

At first sight, the easements and plan don’t seem to accord with the agt for sale and purchase.

[18] There is no point going through the subsequent correspondence. The position adopted by Mr Johnston in effect is that the subdivision approval obtained does not conform to what was provided for by the agreement in that an easement of ten metres width goes beyond what could fairly be regarded as contemplated.
[19] Accordingly, Schist issued proceedings in the High Court seeking specific performance of the contract together with damages and costs.
[20] Mr Johnston counterclaimed arguing that there was an implied term of the agreement that subdivision consent would not impact adversely on his use of the land and would not impose restrictions on such use that were not provided for in the agreement.

The Judge’s decision

[21] The Judge’s key findings were as follows:

[45] It is clear that the intention was for Mrs Wilson to obtain Lot 2, but only in circumstances where the rest of the contract could be honoured. It is also clear that no-one contemplated a 10 metre right of way and this was something that Mr Weller, the surveyor, introduced of his own accord. It is equally apparent that when Mr Johnston’s consent was obtained both he, and Mrs Wilson, failed to realise that the right of way provided for was 10 metres. However, he obtained a variation of the agreement to allow for the right of way over Lot 2 to the hill block to be set at 10 metres. He was advised to do this as it would be necessary if he later wished to subdivide the hill block. I accept he had no present intention to do that but was simply keeping all options open. Furthermore, the solicitor drafting the agreement did not envisage a 10 metre right of way.
...
[46] I also accept that the Defendants’ solicitor notified Mr Williamson [Schist’s solicitor] that the Defendants did not intend disputing the subdivision decision. But that must be placed in context because it is in response to an email which states the agreement does not provide for the subdivision conditions to be approved by the purchaser. Clearly that is the case and the Defendants had no power to object to those conditions. Likewise in my view even if Mr Johnston had become aware the right of way in Mr Weller’s plans was at 10 metres the effect of clause 16.9 prevents the purchaser from objecting to the subdivision application and land use application.

[22] The Judge concluded that clause 16.5(a) of the agreement, objectively construed, did not contemplate a right of way of 10 metres width being created. Of primary importance to this conclusion was that nowhere in the agreement was the cost of constructing the right of way assigned. In the Judge’s view (set out at [48]):

Reasonable people looking at the circumstances or surrounding facts would have realised that [the driveway is lengthy] and would have been conscious that there would be significant expense involved in creating such new or upgraded right of way. If this is what had been in the contemplation of the parties, given the comprehensive and careful nature of this agreement, it would have been spelt out.

In this respect the Judge was in error as it is clear that the cost of forming the carriageway will fall on Schist (as being a cost associated with the subdivision).

[23] The Judge then accepted Schist’s argument that the standards in the Central Otago District Plan were applicable as an implied term of the agreement. This term, he considered, satisfied the five point test set out by Lord Denning in BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40; (1977) 16 ALR 363 at 376 (PC). Yet this did not assist Schist because what in fact had been granted was an easement much wider than six metres.
[24] In the Judge’s view, the problem was that the Council had decided upon a ten metre width right of way on the application of Schist itself. Schist did not appeal that decision. The Judge was not prepared to interfere with that decision (and did not think he had the jurisdiction to do so at [51]). By not appealing that decision, Schist had to be taken to have accepted it.

Discussion

[25] A variety of arguments were put forward on both sides but on the approach we prefer, the case is relatively straightforward.
[26] It is not reasonable or sensible to construe cl 16.5(a) of the contract as limiting the easement associated with the right of way to the existing physical dimensions of the driveway. As noted, this would have resulted in substantial surveying expenses associated with the irregular course of the existing driveway and so narrow a legal accessway was not particularly likely to have been approved by the Council, given the District Plan’s standards which provide for a six metre right of way and a four metre carriageway. Conditions for approval of the subdivision could therefore be expected to address the required width of the carriageway and associated easement. The contract gave Mr Johnston no right of veto associated with the conditions, a point made perfectly by cl 16.1(a) which refers to "conditions acceptable to the vendor".
[27] On the subdivision consent which was obtained, the carriageway and associated shallow trafficable water tables will be approximately five metres in width. This may lead to difficulties for Mr Johnston in terms of removal of trees and irrigation. But given the subdivision standards adopted by the Council such difficulties were always likely, and given the terms of the contract as a whole (particularly the absence of any veto over the conditions of consent) he was required to accept them. It follows that his counter-claim is unfounded.
[28] The width of the easement (as opposed to the width of the carriageway) is of no real moment. Under cl 16.6, the easement must be approved by Mr Johnston’s solicitor. Although that clause provides that such approval may not be unreasonably withheld, Mr Johnston’s solicitor would be perfectly entitled to ensure that the easement as finalised is appropriate for the access contemplated by the agreement. Against that background we think that Mr Johnston’s solicitor could insist on terms which provided that he had no obligation to remove trees or irrigation save to the extent that this was necessary for permit construction and use of the carriageway, associated trafficable water tables and other services as required by the subdivision consent.
[29] The scheme of the contract was that the subdivision should be on terms which were to be fixed by the Council and over which Mr Johnston had no right of veto. The contract does not expressly limit the dimensions of the carriageway to those of the existing driveway, nor the width of the easement to the exact dimensions of the carriageway. Rather, all relevant dimensions were necessarily to be as fixed by the Council. So what has happened is well within what was contemplated by the contract. On that simple basis, the appeal must succeed.
[30] There are a number of other considerations which also weigh against Mr Johnston.
[31] The practicalities of the subdivisional process necessarily required that the plan of subdivision be assented to by both parties. In the event that the parties had not been able to agree as to the detail of the plan (with Mr Johnston perhaps suggesting that the plan as submitted lay outside what was contemplated by the contract) it would have been necessary for the High Court to determine the metes and bounds of what was contemplated by the agreement for sale and purchase. But given that the plan was approved by both parties, this issue never arose. To put this another way, it perfectly clear that the agreement for sale and purchase contemplated that a subdivision in accordance with a plan which both parties had assented to would be in accord with the contract. For these purposes, it does not matter that Mr Johnston did not appreciate that the subdivision plan provided for a ten metre easement. In this context, what is critical is the externalities of what happened, and in particular the signed approval to the plan and subdivision.
[32] All of this is in accord with commonsense and the justice of the case. Mr Johnston was a party to the submission of the plan in the form in which it was submitted. Further, when given the opportunity to challenge the outcome at a time when it was still open to the appellant to preserve the position by an appeal to the Environment Court, Mr Johnston indicated that there was no objection to the conditions. Even allowing for Mr Johnston’s contention (which was accepted by the Judge) that even at this point in the process he did not appreciate that a ten metre easement was envisaged, it would be remarkably unjust to permit him now to allege a defect which, on his approach to the case, can no longer be remedied and has resulted in something very like a forfeiture of Schist’s interest in Lot 2. We note in passing that Lot 2 is now plainly worth far more than the $50,000 value ascribed to it in the 2002 agreement.
[33] We emphasise that on our approach to cl 16.6, Mr Johnston has lost nothing of significance by his mistake.

Disposition

[34] The appeal is allowed.
[35] We grant a decree for specific performance requiring the respondents to transfer Lot 2 to the appellant or nominee without additional consideration. Any issues as to implementation are to be resolved in the High Court. The appellant’s claim for damages is remitted to the High Court for consideration.
[36] The appellant is entitled to costs in this Court of $6,000 together with usual disbursements (for two counsel). The costs order in the High Court is set aside with costs in favour of the appellant to be fixed in that Court.

Solicitors:
Webb Farry, Dunedin for Appellant
Blake Horder Gowing, Wanaka for Respondents

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2006/228.html

[2]	The case concerns property in Blackman Gully, near Alexandra in Central Otago. The land which is primarily relevant to the case was in one title, but comprised two lots, a front lot (Lot 3) and rear lot (Lot 2). This is the land which was sold by Schist to Mr Johnston. An associated company, Schist Mountain Forest and Viticulture Limited, owned land which is adjacent to Lot 2. We will refer to this as "the adjoining land". This land too was sold to Mr Johnston. The second respondent, Earnscleugh Vineyards Limited was Mr Johnston’s vehicle for purchasing the land. For convenience, however, we will refer to Mr Johnston as being the purchaser.
[3]	The two vendor companies were controlled by Michael and Joy Wilson. In the normal course of events, the Wilsons would have created separate titles for Lots 2 and 3 and would then have sold Lot 3 and the adjoining property to Mr Johnston. But because of time constraints, the parties decided to structure the deal so that all of the land would be transferred to Mr Johnston, subject to an obligation to retransfer Lot 2 back to Schist after the Central Otago District Council had approved a subdivision and issued a new title for that land.
[4]	The critical agreement was entered into on 7 March 2002 and provided for settlement on 28 March 2002. The agreement on its front page referred only to Lot 3 as being subject to the sale and specified the sale price as being $225,000 plus GST. The contract went on to provide, in the event that Lot 2 was not transferred back to Schist, the purchase price would be increased to $275,000 plus GST.
[5]	As at March 2002, physical access to Lot 2 was provided along a gravel driveway approximately three metres wide which ran generally along the western side of Lot 3. The parties envisaged that there would be an easement in favour of Lot 2 which would permit the use of this driveway as a means of access and that services for Lot 2 would be provided in the same general area.
[6]	The relevant clauses in the contract were in these terms:

[7]	We have set out only those provisions of the agreement which are directly relevant to the appeal. But the agreement also provided for an easement over Lot 2 in favour of the adjoining land which Mr Johnston acquired. As well, Schist was required to meet all costs associated with the subdivision.
[8]	Before settlement, Mr Johnston sought to increase the width of the right of way to the adjoining land to ten metres. Schist agreed to this.
[9]	The surveyor (Mr Weller) responsible for the subdivision took the view that the easement over Lot 3 should also be ten metres wide. In part this was related to the agreed width of the other easement. As well, it would not have been practicable to define the easement over Lot 3 solely by reference to the course of the existing driveway. The driveway was not of uniform width. Nor was it completely straight. Legal definition of the easement by reference to the driveway would have involved a significant pegging exercise which, in all probability, would have been wasted as it was not very likely that the Council would have approved the subdivision with so narrow a legal access way, particularly as the standards laid down in its district plan provided for a six metre easement and a four metre carriageway.
[10]	The surveyor accordingly drew the plan of subdivision on the basis that the easement over Lot 3 was to be ten metres. Mrs Wilson took the plan and a consent form to Mr Johnston and he signed both documents. The consent form signed by Mr Johnston recorded:

[11]	Mr Johnston signed directly under those words. As noted, he also signed the plan.
[12]	The Judge found that Mr Johnston did not appreciate that the easement over Lot 3 was to be ten metres wide. This finding of fact was not challenged on appeal. Indeed it is very likely that that Mr Johnson was under some such misapprehension because, prior to the hearing of the application for the subdivision consent, he indicated that he did not agree to the carriageway being wider than the existing driveway or to "stormwater disposal water tables" intruding outside "the current right of way". On the other hand, when he signed the plan, he signified, in a manner which was legally effective from the point of view of the subdivision process, that he agreed to an easement that was ten metres wide.
[13]	The Council eventually approved the subdivision subject to the following conditions:

[18]	There is no point going through the subsequent correspondence. The position adopted by Mr Johnston in effect is that the subdivision approval obtained does not conform to what was provided for by the agreement in that an easement of ten metres width goes beyond what could fairly be regarded as contemplated.
[19]	Accordingly, Schist issued proceedings in the High Court seeking specific performance of the contract together with damages and costs.
[20]	Mr Johnston counterclaimed arguing that there was an implied term of the agreement that subdivision consent would not impact adversely on his use of the land and would not impose restrictions on such use that were not provided for in the agreement.

[25]	A variety of arguments were put forward on both sides but on the approach we prefer, the case is relatively straightforward.
[26]	It is not reasonable or sensible to construe cl 16.5(a) of the contract as limiting the easement associated with the right of way to the existing physical dimensions of the driveway. As noted, this would have resulted in substantial surveying expenses associated with the irregular course of the existing driveway and so narrow a legal accessway was not particularly likely to have been approved by the Council, given the District Plan’s standards which provide for a six metre right of way and a four metre carriageway. Conditions for approval of the subdivision could therefore be expected to address the required width of the carriageway and associated easement. The contract gave Mr Johnston no right of veto associated with the conditions, a point made perfectly by cl 16.1(a) which refers to "conditions acceptable to the vendor".
[27]	On the subdivision consent which was obtained, the carriageway and associated shallow trafficable water tables will be approximately five metres in width. This may lead to difficulties for Mr Johnston in terms of removal of trees and irrigation. But given the subdivision standards adopted by the Council such difficulties were always likely, and given the terms of the contract as a whole (particularly the absence of any veto over the conditions of consent) he was required to accept them. It follows that his counter-claim is unfounded.
[28]	The width of the easement (as opposed to the width of the carriageway) is of no real moment. Under cl 16.6, the easement must be approved by Mr Johnston’s solicitor. Although that clause provides that such approval may not be unreasonably withheld, Mr Johnston’s solicitor would be perfectly entitled to ensure that the easement as finalised is appropriate for the access contemplated by the agreement. Against that background we think that Mr Johnston’s solicitor could insist on terms which provided that he had no obligation to remove trees or irrigation save to the extent that this was necessary for permit construction and use of the carriageway, associated trafficable water tables and other services as required by the subdivision consent.
[29]	The scheme of the contract was that the subdivision should be on terms which were to be fixed by the Council and over which Mr Johnston had no right of veto. The contract does not expressly limit the dimensions of the carriageway to those of the existing driveway, nor the width of the easement to the exact dimensions of the carriageway. Rather, all relevant dimensions were necessarily to be as fixed by the Council. So what has happened is well within what was contemplated by the contract. On that simple basis, the appeal must succeed.
[30]	There are a number of other considerations which also weigh against Mr Johnston.
[31]	The practicalities of the subdivisional process necessarily required that the plan of subdivision be assented to by both parties. In the event that the parties had not been able to agree as to the detail of the plan (with Mr Johnston perhaps suggesting that the plan as submitted lay outside what was contemplated by the contract) it would have been necessary for the High Court to determine the metes and bounds of what was contemplated by the agreement for sale and purchase. But given that the plan was approved by both parties, this issue never arose. To put this another way, it perfectly clear that the agreement for sale and purchase contemplated that a subdivision in accordance with a plan which both parties had assented to would be in accord with the contract. For these purposes, it does not matter that Mr Johnston did not appreciate that the subdivision plan provided for a ten metre easement. In this context, what is critical is the externalities of what happened, and in particular the signed approval to the plan and subdivision.
[32]	All of this is in accord with commonsense and the justice of the case. Mr Johnston was a party to the submission of the plan in the form in which it was submitted. Further, when given the opportunity to challenge the outcome at a time when it was still open to the appellant to preserve the position by an appeal to the Environment Court, Mr Johnston indicated that there was no objection to the conditions. Even allowing for Mr Johnston’s contention (which was accepted by the Judge) that even at this point in the process he did not appreciate that a ten metre easement was envisaged, it would be remarkably unjust to permit him now to allege a defect which, on his approach to the case, can no longer be remedied and has resulted in something very like a forfeiture of Schist’s interest in Lot 2. We note in passing that Lot 2 is now plainly worth far more than the $50,000 value ascribed to it in the 2002 agreement.
[33]	We emphasise that on our approach to cl 16.6, Mr Johnston has lost nothing of significance by his mistake.

[34]	The appeal is allowed.
[35]	We grant a decree for specific performance requiring the respondents to transfer Lot 2 to the appellant or nominee without additional consideration. Any issues as to implementation are to be resolved in the High Court. The appellant’s claim for damages is remitted to the High Court for consideration.
[36]	The appellant is entitled to costs in this Court of $6,000 together with usual disbursements (for two counsel). The costs order in the High Court is set aside with costs in favour of the appellant to be fixed in that Court.