Raiser Developments Ltd v Trefoil Properties Ltd [2008] NZCA 73; (2008) 9 NZCPR 161 (19 March 2008)

Last Updated: 6 January 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA369/07

[2008] NZCA 73

BETWEEN RAISER DEVELOPMENTS LIMITED
Appellant

AND TREFOIL PROPERTIES LIMITED
First Respondent

AND GRAFTON OAKS MOTELS (1999) LIMITED
Second Respondent

Hearing: 11 March 2008

Court: Chambers, John Hansen and Heath JJ

Counsel: D A Wood for Appellant
W G Manning for Respondents

Judgment: 19 March 2008 at 4.30 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

2. The High Court’s order staying the order for removal of the caveat made on 11 July 2007 is discharged.

100. Costs of $6,000, together with usual disbursements (including the filing fee on the respondents’ application for leave to adduce further evidence), shall be paid by the appellant to the respondents.
     

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

Introduction

[1] Raiser Developments Ltd (Raiser) appeals against an order made by Associate Judge Faire, in the High Court at Auckland, on 11 July 2007. The Associate Judge directed that a caveat lodged by Raiser against a property owned by Trefoil Properties Ltd (Trefoil) be removed.

The background to the order

[2] On 11 May 2005, Raiser entered into an unconditional agreement to buy a property at 117 Grafton Road, Auckland from Trefoil. The agreed purchase price was $8,190,000. A deposit of $400,000 was payable, with the balance of the purchase price to be paid in cash (as to $1,620,000) and vendor finance (secured by first mortgage over the property and other collateral security) of $6,500,000. Settlement was to be effected on 31 August 2005.
[3] On or about the same day, Raiser entered into an unconditional agreement to acquire a business (known as the Grafton Oaks Hotel) from Grafton Oaks Motels (1999) Ltd (Grafton Oaks). That business is carried on from the Grafton Road property. The purchase price for the business was $330,000. That was to be funded out of the $6,500,000 to be left in as vendor finance on the acquisition of the property.
[4] Raiser alleges that all documents relating to the vendor finance would contain such terms and conditions as were usually contained in documents of that type prepared by solicitors practising within the area regulated by the Auckland District Law Society. Raiser alleges “usual” terms were not incorporated; indeed, it alleges that “onerous and additional other terms” were.
[5] Raiser declined to sign the documents in the form tendered to it. It served a settlement notice on 19 September 2005, providing 12 working days within which Trefoil and Grafton Oaks should settle. Trefoil and Grafton Oaks countered with their own settlement notice. On 22 September 2005 Trefoil and Grafton Oaks purported to cancel the respective agreements.
[6] Raiser tendered the purchase price. However, settlement has not eventuated. To protect its interest, Raiser lodged a caveat against the Grafton Road property. Shortly afterwards, steps were taken to trigger the need for Raiser to seek an order that the caveat not lapse.
[7] An application under s 145A of the Land Transfer Act 1952 (the Act) was filed in October 2005. In the accompanying Statement of Claim, Raiser sought an order for specific performance of both the property and business agreements.
[8] Trefoil and Grafton Oaks deny liability to settle on the terms originally alleged by Raiser or on a new basis derived from an alleged settlement. By way of counterclaim, they seek declarations that their cancellation of the respective agreements was lawful.

The High Court proceedings

[9] An interim order that the caveat not lapse was made on 27 October 2005. At a case management conference on 20 March 2006, Judge Faire maintained the caveat (by consent), allocated a trial date for the substantive proceeding to begin on 25 September 2006, made pre-trial directions and scheduled a settlement conference for 17 July 2006.
[10] A judicial settlement conference was held on 17 July 2006. Agreement was not reached. It was adjourned to enable settlement negotiations to continue.
[11] On 21 July 2006, there was an exchange of correspondence between counsel for the parties which, on one reading, evidences a settlement agreement. Trefoil and Grafton Oaks contend that the purchase price was reduced to $8,217,500, with no vendor finance. Settlement was to be effected on 18 August 2006, time being of the essence. Steps were taken by Trefoil and Grafton Oaks to implement what they saw as a settlement agreement. Raiser did not settle on the due date. Trefoil and Grafton Oaks purported to cancel that agreement on 19 August 2006.
[12] In their Statement of Defence to an Amended Statement of Claim, Trefoil and Grafton Oaks plead the settlement agreement and Raiser’s failure to settle as additional defences to the claim for specific performance on the original agreement. In particular, they plead:

31. Further, the Settlement Agreement provided, expressly or impliedly, that the original Agreement for Sale and Purchase and all rights and liabilities arising thereunder, were at an end.

[13] The substantive hearing scheduled for September 2006 did not proceed. Instead, on 28 September and 15 November 2006, Judge Faire heard, on a defended basis, Raiser’s application for an order that the caveat not lapse.
[14] In a judgment delivered on 16 November 2006, Judge Faire directed that the caveat not lapse, pending further order of the Court. He did so on the basis of an arguable question whether the first contract was discharged by the settlement agreement. A substantive trial was allocated for the week of 13 August 2007 and further trial directions were made.
[15] Contemporaneously with the order that the caveat not lapse, the Associate Judge directed that:

...

2. Leave is reserved to the parties, on fourteen days’ notice, to have the notice of originating application for an order that a caveat not lapse listed for further consideration to determine if, as a result of a change of circumstances, further orders should be made;

....

[16] After the 16 November 2006 judgment, Trefoil and Grafton Oaks sought security for costs on the substantive claim. On 4 May 2007, Associate Judge Gendall ordered that security be posted by Raiser, in the sum of $65,000, within 10 working days. Raiser failed to post security within the time fixed.
[17] In a Minute dated 15 June 2007, having been alerted to this issue by counsel for Trefoil and Grafton Oaks, Judge Faire put Raiser on notice that there was a risk that an order would be made striking out the proceeding if various defaults were not cured.
[18] Trefoil and Grafton Oaks asked that the application relating to the caveat be re-listed before Judge Faire, pursuant to the leave reserved in his 11 November 2006 judgment. It was restored for argument on 4 July 2007. On 11 July 2007, the Associate Judge ordered that the caveat be removed. He made that order on the basis of what he perceived to be a change in circumstances, relevant to the balance of convenience. Those changes arose from Raiser’s failures to comply with timetabling directions made in his earlier judgment and to post security as ordered by Judge Gendall.
[19] Judge Faire said:

[12] I reach the conclusion that the caveat should be removed. That, of course, is the principal relief sought by the defendants arising from the plaintiff’s default. My reasons for reaching that conclusion are as follows:

a) The subject transaction provides for a consideration in excess of $8 million;

b) The transaction is of a commercial nature;

c) The plaintiff, as purchaser, if specific performance were ordered would have to pay the consideration, or at least a substantial part of it. Its ability to do has not been revealed by discovery;

d) The Court has determined in the security for costs judgment its concern as to the ability of the plaintiff to meet a cost order. The position has been reinforced by the plaintiff’s non-compliance with the order for security for costs resulting in the proceeding being stayed. All counsel for the plaintiff can tell me is that he has been advised by the plaintiff that the security ordered will be paid by 31 July 2007. That is 20 days before the scheduled start date of the trial;

e) The plaintiff was put on notice when the caveat judgment was released that a default in relation to security for costs could lead to an order for the removal of the caveat. Despite counsel for the defendants’ memorandum of 7 June 2007 there has been no compliance;

f) The plaintiff was further put on notice when my minute was issued on 15 June 2007 that the originating application was being re-listed and the fact that I had previously alluded to the possibility that the caveat might be discharged;

g) No proper evidence has been placed before me to indicate an imminent compliance with the order for security for costs. Indeed, the current position reveals that it is most unlikely that the trial will be able to proceed;

h) The plaintiff’s right to a decree of specific performance is clearly in question. There is a significant change in the balance of convenience since my judgment of 16 November 2006;

i) There is an increased anxiety as to the plaintiff’s ability to meet any damages, whether they be ordered pursuant to s 146 of the Land Transfer Act 1952, for wrongful lodging of the caveat or otherwise, in the event that the plaintiff failed to succeed in the specific performance action; and

j) The defendants have presented evidence of an offer for the subject property at a purchase price of $9 million. That must be compared with the combined consideration contained in the property contract of $8,190,000 and the business contract of $330,000, which are the pleaded bases for the decree of specific performance. The defendants’ director is anxious to sell and quit a business for both financial and health reasons. If the caveat is discharged and the defendants fail the defendants’ own evidence gives a potential basis for damages, namely the loss of the benefit of the contract. There is no evidence to suggest that this defendant company does not possess significant equity in the subject contract. Any sale by the defendant will take considerable time to settle. The offer is drawn on the basis that settlement would be 15 June 2008 or such earlier time by the purchaser providing two months notice. Bearing in mind those circumstances, I see little risk if in fact matters were to proceed to trial in the defendant not meeting any damages claim in lieu of satisfying the decree of specific performance. On the other hand, there is simply no support for the proposition that this plaintiff will settle. Continued disobedience of Court orders when equitable relief is sought is plainly unsatisfactory. If, on the other hand, the plaintiff had a change of heart and determined to comply expeditiously with the Court’s orders, the position could easily be resolved by a formal application to lodge a second caveat and a request for that matter to be dealt with on an urgent basis. I need only refer to s 148 of the Land Transfer Act 1952 in respect of that matter.

[20] On 2 August 2007, the High Court heard an application for an order staying removal of the caveat, pending an appeal to this Court. By the time Judge Faire heard that application, Raiser had paid the security for costs ordered by Judge Gendall; payment was made to the Registrar of the High Court on 31 July 2007. In addition, Mr Clode, the principal of Raiser, agreed to extend his personal undertaking, given in respect of damages through the stay period, until disposal of the appeal.

Application for leave to adduce further evidence on appeal

[21] We heard Raiser’s appeal on 11 March 2008. The day before the hearing, Trefoil and Grafton Oaks sought leave to adduce further evidence, by way of affidavit from its solicitor. That evidence disclosed the existence of a second caveat lodged against the Grafton Road property in the name of Grafton Road Building Ltd. That caveat was registered on 28 February 2008, apparently without notification to Trefoil or Grafton Oaks.
[22] The caveat is dated 17 July 2007 and refers to a “nomination agreement”, dated 17 June 2007, under which Raiser asserts it nominated Grafton Road Building Ltd to take title to the property. The so called “Nomination Agreement” was signed sometime between Judge Gendall’s order for security for costs (4 May 2007) and the order removing Raiser’s caveat (11 July 2007). The caveat was lodged less than one month before the appeal hearing.
[23] On the morning of the appeal, Mr Wood, for Raiser, provided an affidavit from Mr Clode in response. Mr Clode deposed that the “nomination agreement” was conditional and was not satisfied by Grafton Road Building Ltd. Surprisingly, notwithstanding lodgment of the Grafton Road Building Ltd caveat on 28 February 2008, Mr Clode felt able to state on oath that the “nomination agreement” was at an end as at August 2007. He deposed that the presence of the caveat was an error and produced a withdrawal of it which was lodged for registration with the District Land Registrar on 10 March 2008.
[24] Without opposition, we gave leave for the evidence from Trefoil and Grafton Oaks’ solicitor and Mr Clode’s affidavit in response to be adduced on appeal.

Competing submissions

[25] On this appeal Mr Wood advanced two points on behalf of Raiser.
[26] The first ground was jurisdictional in nature: Mr Wood submitted that the Associate Judge had no jurisdiction to reconsider his original decision that the caveat not lapse. The basis of that submission was that there was no power to impose conditions to an order under s 145A of the Act. In the absence of such a power, Mr Wood contended that the Judge was not entitled to reserve leave to enable the balance of convenience issue to be reconsidered on the basis of an alleged change in circumstances. An allied issue is the extent to which balance of convenience issues can take precedence once an arguable case has been found in favour of a caveator.
[27] The second appeal point went to the discretion exercised by Judge Faire: Mr Wood submitted that the Judge had failed to take account of a relevant factor, namely the existence of the stay imposed following Raiser’s failure to post security for costs within the time stipulated by Judge Gendall. Mr Wood submitted that the stay meant that Raiser could not take any further steps in the proceeding. Accordingly, he submitted, Judge Faire ought not to have taken into account failure to comply with procedural directions in concluding that the balance of convenience required an order removing the caveat.
[28] On the jurisdictional point, Mr Manning, for Trefoil and Grafton Oaks, submitted that there was jurisdiction for the Court to impose conditions when making the order of 16 November 2006. Further, he submitted that the leave reserved was sufficient to found jurisdiction for the Associate Judge to reconsider issues relevant to the balance of convenience.
[29] Mr Manning also submitted that the stay of proceedings was directly referable to Raiser’s own default in providing security and in not complying with other timetabling directions. He submitted that Raiser ought not to be permitted to take advantage of its own defaults to maintain its caveat.

Analysis of competing submissions

(a) The jurisdictional point

[30] Sections 143, 145, 145A and 146 of the Act provide:

143 Procedure for removal of caveat

(1) Any such applicant or registered proprietor, or any other person having any registered estate or interest in the estate or interest protected by the caveat, may, if he thinks fit, apply to the High Court for an order that the caveat be removed.

(2) The Court, upon proof that notice of the application has been served on the caveator or the person on whose behalf the caveat has been lodged, may make such order in the premises, either ex parte or otherwise, as to the Court seems meet.

...

145 Lapse of caveat against dealings

(1) Every caveat under section 137, upon the expiration of the first prescribed period after notice is given to the caveator that an application has been made for the registration of any instrument affecting the land, estate, or interest protected by the caveat, is deemed to have lapsed as to that land, estate, or interest, or so much of it as is referred to in the notice, unless—

(a) notice is, within the first prescribed period, given to the Registrar that an application for an order to the contrary has been made to the High Court; and

(b) such an order is made and served on the Registrar within the second prescribed period.

(2) The provisions of subsection (1) do not apply in the case of a caveat lodged by the Registrar in the exercise of any of the powers conferred on the Registrar by this Act.

(3) In this section, first prescribed period and second prescribed period are periods prescribed for the purposes of this section by regulations made under this Act.

145A Early lapse of caveat against dealings

(1) The registered proprietor of any estate or interest in the land protected by a caveat against dealings (other than a caveat lodged by the Registrar) may apply to the Registrar for the caveat to lapse.

(2) The Registrar must give the caveator notice of an application under subsection (1).

(3) The caveat lapses with the close of the prescribed period after the date on which the notice under subsection (2) is given unless—

(a) the caveator has earlier given to the Registrar notice that an application for an order to the contrary has been made to the High Court; and

(b) an order to that effect has been made and served on the Registrar within the prescribed period after the date on which the notice under paragraph (a) is given to the registrar.

146 Person entering caveat without due cause liable for damages

(1) Any person lodging any caveat without reasonable cause is liable to make to any person who may have sustained damage thereby such compensation as may be just.

(2) Such compensation as aforesaid shall be recoverable in an action at law by the person who has sustained damage from the person who lodged the caveat.

[31] An application that a caveat not lapse may be made in either of the circumstances identified in ss 145 and 145A of the 1952 Act. In this case, the s 145A procedure was used.
[32] Section 145A was introduced with effect from 12 June 2003 following enactment of s 52 of the Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act 2002. It provided an ability for a registered proprietor to apply to the District Land Registrar for the caveat to lapse. This contrasted with the original procedure under s 145, when an application that a caveat not lapse had to be commenced by registering an instrument affecting the land, estate or interest the caveat sought to protect. Other than the change to the gateway process, there is no material difference between ss 145 and 145A that would justify the latter being interpreted in any different manner to the former.
[33] An alternative procedure is for a registered proprietor (or any other person having a registered estate or interest) to seek an order from the High Court that the caveat be removed: s 143(1). Unlike ss 145 and 145A, s 143(2) expressly allows the High Court to “make such order in the premises, either ex parte or otherwise, as to the Court seems meet”. Plainly, that provision entitles the Court, when an application for removal is made under s 143, to make an order subject to conditions.
[34] In truth, there is no difference between the s 143 procedure (on the one hand) and the ss 145 and 145A procedures (on the other) other than the identity of the party entitled to initiate the application. Irrespective of the procedure adopted, the onus is on a caveator to justify the clog that it seeks to put on the registered proprietor’s ability to deal with its property: see Sims v Lowe [1988] 1 NZLR 656 (CA) at 660, per Somers and Gallen JJ.
[35] Before s 145A was enacted, there was a debate as to whether the High Court had jurisdiction to attach conditions to a s 145 order. The argument against that ability was based on the absence of any words in s 145 that provided an appropriate source of jurisdiction: cf s 143(2).
[36] In Leather v Church of the Nazarene [1984] 1 NZLR 544 (HC), Savage J took the view that there was jurisdiction to impose a condition requiring the caveator to give an undertaking as to damages on a s 145 application. A contrary view was reached by Hillyer J in Re Dick’s Caveat [1985] 2 NZLR 641 (HC).
[37] Since Re Dick’s Caveat, the prevailing view has favoured jurisdiction to make a conditional s 145 order. The view expressed in Leather was subsequently followed in Borlase v Morris [1985] 2 NZLR 646 (HC), Holmes v Australasian Holdings Ltd [1988] 2 NZLR 303 (HC), BP Oil New Zealand Ltd v Van Beers Motors Ltd [1992] 1 NZLR 211 (HC) and Noton v Peten Developments Ltd (1992) 2 NZ ConvC 191,261 (HC). That line of cases has been followed in a number of decisions of Associate Judges, to which it is unnecessary to refer.
[38] The reasoning underlying the prevailing High Court judgments can be captured in two propositions. The first is that a discretion is necessary to ensure adequate protection is given to registered proprietors in a proper case and which goes beyond the compensation criteria in s 146: Borlase v Morris at 651 per Chilwell J, with whom Wallace J agreed in Holmes v Australasian Holdings Ltd at 313. The second was Barker J’s reliance, in BP Oil, on r 263 of the High Court Rules, a provision which provided a general power for the Court to require conditions on an interlocutory application. At 218 of BP Oil, Barker J observed that it was the invariable practice of the Court to impose conditions of a mechanical kind, such as requiring the issue of specific performance proceedings and the fixing of timetables, so, logically, any other reasonable condition ought properly to be imposed.
[39] At the time BP Oil was decided, r 263 of the High Court Rules provided:

263 Orders may be made subject to conditions, etc.

An order made on an interlocutory application may be limited to have effect for such time and on such terms and conditions and subject to such undertakings as the Court thinks just.

[40] Part 4A of the High Court Rules was promulgated in 1987, introducing the originating application procedure under which a s 145 or s 145A application is now made: r 458D(1)(a)(xii). In 2003, r 263 was repealed. It was replaced by r 236 which provides:

236 Interlocutory orders may be made subject to conditions

The Court may make an interlocutory order subject to any terms or conditions that the Court thinks just, including, without limitation, any condition that—

(a) a party give an undertaking:

(b) the order operate only for a specified period.

[41] Rule 236 applies to the originating application procedure: r 458F(1). Rule 458F(2) provides:

458F Application of provisions relating to interlocutory applications

(2) Despite subclause (1), rule 236, in its application to an originating application, is subject to the Act under which the originating application is made.

In our view, r 458F(2) does not limit or remove the application of r 236 to the s 145 or s 145A procedure. We agree with Barker J’s comments in BP Oil, at 218: the general power to impose conditions is not circumscribed by s 145; or, now, s 145A.

[42] Rule 236 goes further than the old r 263. It provides a complete answer to the jurisdictional point. Re Dick’s Caveat was inconsistent with r 263 and remains inconsistent with r 236. In our view, Re Dick’s Caveat was wrongly decided and the later authorities represent a correct statement of the law.
[43] For those reasons, we hold in favour of Trefoil and Grafton Oaks on the jurisdictional issue.

(b) The argument on discretion

[44] The second issue is whether Judge Faire erred in the exercise of his discretion to remove the caveat, having regard to developments since his 16 November 2006 judgment.
[45] In Holt v Anchorage Management Ltd [1987] 1 NZLR 108 (CA), all three members of this Court, delivering separate judgments, took the view that, while balance of convenience factors could be taken into account, it was doubtful whether a s 145 case would be decided against a caveator if an arguable case were established: McMullin J (at 114-116), Somers J (at 117 and 119) and Casey J (at 123). That view was accepted in Sims v Lowe.
[46] However, subsequently, this Court has retreated from both Holt and Sims v Lowe on this point: see Pacific Homes Ltd (In receivership) v Consolidated Joineries Ltd [1996] 2 NZLR 652 (CA). In Pacific Homes, the Court distinguished Sims v Lowe, holding that the s 143 discretion was broader than had been suggested by the plurality’s judgment in that case.
[47] Delivering the judgment of this Court in Pacific Homes Ltd, Blanchard J observed, at 656:

We are of the view that in the dictum in Sims v Lowe Somers and Gallen JJ were concerned with the situation which was then before the Court and were not putting their minds to a situation in which there is no practical advantage in maintaining a caveat lodged by someone who could properly claim a caveatable interest. In such circumstances the Court retains a discretion to make an order removing the caveat, though it will be exercised cautiously. An order will be made for removal only where the Court is completely satisfied that the legitimate interests of the caveator will not thereby be prejudiced. If, on the facts of a case, it can be seen that the caveator can have no reasonable expectation of obtaining benefit from continuance of the caveat in the form of the recovery of money secured over the land or specific performance of an agreement or if the caveator's interests can be reasonably accommodated in some other way, such as by substituting a fund of money under the control of the Court, then it may be appropriate for the caveat to be removed notwithstanding that the right to the claimed interest is undoubted.

[48] Despite the Court’s observations on the breadth of the discretion, Blanchard J was careful to make clear that a discretion to remove would be exercised cautiously, giving some examples (we do not think intended to be exhaustive) of the circumstances in which that might occur. The thrust of the Court’s decision in Pacific Homes Ltd was to emphasise that the existence of an arguable case could be overridden by discretionary considerations in unusual cases justifying that course. In each case it is necessary for a Court exercising originating jurisdiction to consider carefully whether the balance of convenience factors truly outweigh the caveator’s prima facie entitlement to protection of its claimed interest pending trial.
[49] Mr Wood submitted (faintly) that Judge Faire had revisited his original view on the arguability of Raiser’s case. The Judge did not do that. Rather, the Judge reconsidered the extension of the caveat in light of a change in circumstances. Notwithstanding the existence of an arguable case, the Judge considered whether balance of convenience factors outweighed the existence of an arguable case. We hold that he was entitled to do that.
[50] The first factor that caused Judge Faire to reconsider balance of convenience issues was Raiser’s failure to comply with Judge Gendall’s order to provide security for costs in the substantive proceeding in the sum of $65,000. Ten working days, from 4 May 2007, were allowed for Raiser to comply with that order. If security were not posted by that time the proceeding was automatically stayed: para [85](c) of Judge Gendall’s judgment. The failure to post security by the time Judge Faire gave his second judgment on 11 July 2007 went both to the potential likelihood of Raiser meeting any adverse order for costs on the proceeding and to its ability to settle a multimillion dollar transaction.
[51] The second factor was Raiser’s failure to comply with timetabling orders. This failure put at risk the early hearing of the substantive claim. That was a significant issue in the context of the value of the land and the (effective) injunction preventing Trefoil from dealing with it pending resolution of the proceeding.
[52] Mr Wood sought to answer those two powerful concerns by submitting that the existence of the stay of proceeding (as a result of Raiser’s non-compliance with the security for costs order) explained its failure to take further steps. He submitted that the Judge ought to have taken into account the stay in favour of extending the caveat, rather than weighing Raiser’s default in failing to provide security as a factor justifying reconsideration of the earlier order.
[53] We disagree. A prompt hearing of the substantive claim had been allocated. That was put in jeopardy by Raiser’s failure to advance the proceeding. The effect of the stay was to absolve Trefoil and Grafton Oaks from having to comply with any orders. But the stay did not absolve Raiser of the need to comply with its obligations while it gathered sufficient funds to post security.
[54] We must assess whether Judge Faire exercised his discretion correctly, based upon the information before him. It is irrelevant whether (as happened) security was ultimately posted or whether the proceeding went to trial at the anticipated time. Those factors might have been relevant had an application to lodge a second caveat been made and prosecuted (which it was not) but they cannot be given any weight in our assessment of whether Judge Faire erred in the exercise of his discretion.
[55] We consider that this was a case in which it was appropriate for the Associate Judge to reconsider extension of the caveat based on balance of convenience grounds. He did not err in doing so; indeed, it seems to us, he made the only order that was open to him.
[56] In our view, the leave reserved to the parties to have the application under s 145A re-listed was sufficient for the Judge to determine whether the caveat ought to be removed, notwithstanding the existence of an arguable case. The amount required to settle the transaction in the form alleged by Raiser is so significantly higher than the relatively modest amount required to comply with the order for security for costs that non-payment of that security alone would have justified the Judge’s decision to remove the caveat. The additional defaults in complying with timetabling orders put a prompt trial at risk and provided further grounds for the Associate Judge’s decision to revisit maintenance of the caveat.

Result

[57] The appeal is dismissed. The stay pending appeal, ordered by Judge Faire on 2 August 2007, is discharged. The discharge of the stay enables Trefoil to attend to removal of the caveat immediately.
[58] One set of costs is awarded in favour of Trefoil and Grafton Oaks in the sum of $6,000, plus usual disbursements. Those disbursements shall include the filing fee of $900 on the application for leave to adduce new evidence.

Solicitors:
Bytalus Legal, Auckland for Appellant
Christopher Taylor, Auckland for Respondents