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Last Updated: 29 January 2018
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IN THE COURT OF APPEAL OF NEW ZEALAND
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CA574/2011
[2012] NZCA 589 |
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BETWEEN JOCELYN BAYLY
Appellant |
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AND MARION HICKS AND JOHN HICKS
Respondents |
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Hearing: 14 November 2012
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Court: Ellen France, Stevens and Asher JJ
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Counsel: W G C Templeton and R Kaur for Appellant
K T Glover for Respondents |
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Judgment: 14 December 2012 at 2.30 pm
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JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Table of Contents
Para No
Introduction [1]
The lead-up to the
hearing [7]
The High Court decision [11]
The
appeal [14]
The pleadings [17]
Was there jurisdiction for
the Judge to advance the
alternative proposal? [22]
The
process followed [34]
Result [47]
Introduction
[1] This is an appeal against an interim decision relating to the division of a property known as “Paihia”. Paihia is a 516 hectare farm property on the coast near Kerikeri in the Bay of Islands. It bounds Onewhero Bay in the east and a number of smaller bays to the north. It is owned as to an undivided one-half share by Jocelyn Bayly, and as to the other one-half share by Mrs Bayly’s sister, Marion Hicks and her husband John as trustees of a family trust. The property is in two titles, but it is common ground that the historical boundary between the two lots does not constitute a fair basis for any division between them.
[2] Paihia is in its position and layout a unique property. It is located approximately five kilometres north of the Waitangi and Paihia townships and 10 kilometres east of Kerikeri. Road access to the farm is via Kerikeri, but there is no direct road access to any of the beaches. The beach at Onewhero Bay is approximately 1.4 kilometres long featuring reddish-gold sand with areas of flat farmland, native woodland, wetland and rolling farmland behind it. The higher land offers panoramic and uninterrupted views over the beach and the Bay of Islands. There is an area in which dotterels nest. The condition of the beach is pristine. It constitutes an excellent swimming and recreational facility and at the moment the public only have access to it by sea. The Judge, who carried out a site visit, described it as a superb beach and one of the finest in the Bay of Islands. It is common ground that in the area behind the beach there are, subject to approvals under the Resource Management Act 1991, prime development sites.
[3] The land to the north comprises a headland. This is relatively gentle country, but as it comes to the sea it slopes steeply downwards to the coast. The headland is intersected by a number of gullies and ridges. The north also has magnificent views over the Kerikeri inlet and the east has views out over the Bay of Islands. The secluded and intimate beaches around the headland can be accessed by walking tracks down through bush clad gullies. While these are attractive small beaches, Onewhero Bay is the dominant feature of the property. Mrs Bayly and her husband, through their farming company, graze cattle and sheep on the property. It is fenced and well farmed. There are no stock handling facilities.
[4] Mrs Bayly sought an order of the High Court dividing the jointly owned property under ss 339–343 of the Property Law Act 2007 (“the Act”). Mr and Mrs Hicks counterclaimed seeking a sale, which they modified at the hearing to a claim for a division under the Act based on a different boundary. On 19 August 2011 Wylie J declined to direct a division of Paihia as proposed by either Mrs Bayly’s valuer or the Hicks’ valuers. In an interim judgment he proposed a division of Paihia into three lots whereby Lots 1 and 3 would vest in Mrs Bayly and Lot 2 would vest in Mr and Mrs Hicks (“the alternative proposal”). This was different from the two proposals put to him by the parties. He gave directions for further reports, evidence, submissions and a hearing whereby a proposal of a three-lot subdivision could be considered and determined.
[5] Mrs Bayly appeals against this interim judgment. She seeks an order that the alternative proposal and directions were made “without jurisdiction” or were “inappropriate”. In the notice of appeal and submissions filed Mrs Bayly also appealed against the Judge’s decision not to make orders in accordance with her division proposal. However, that ground of appeal was abandoned at the outset of the oral argument.
[6] Mr and Mrs Hicks have not appealed against the decision not to divide the property in accordance with their proposal nor the Judge’s directions as to a way forward. They support the High Court decision, even though it involved the rejection of their expert’s proposal. They say the Judge’s interim decision is a “fair means of resolving a dispute which has lasted over 25 years”.
The lead-up to the hearing
[7] Wylie J has set out the background in full in his interim judgment.[1]
[8] The Bayly family had farmed in the Kerikeri area for many years and acquired ownership of Paihia in the 1960s. Mrs Bayly and Mrs Hicks’ late father, Mr Bayly, had also owned a property adjacent to Paihia known as “Wairoa”.
[9] When their father died in December 1985, Paihia was left on trust for Mrs Bayly and Mrs Hicks. In 2005 pursuant to a family arrangement Paihia was transferred by way of distribution to Mrs Bayly personally as to an undivided onehalf share, and as to Mrs Hicks and her husband John as trustees of their family trust as to the other undivided one-half share.
[10] By this time Mrs Bayly and Mrs Hicks were unfortunately estranged. Paihia had been leased in 2005 on fixed terms to a farming company controlled by Mrs Bayly and her family interests. Both the Bayly and Hicks families used a dwelling at each end of the bay. Mrs Bayly and her husband have through their family company farmed Paihia as well as the Wairoa farm. Mr and Mrs Hicks live in Auckland and do not farm at Paihia, but have a deep affection for it. They and their children use the small bach north of Onewhero Bay. Discussions between the parties as to a possible division of Paihia came to nothing. Proceedings were issued by Mrs Bayly for the division of Paihia in August 2009. The Hicks responded by filing a statement of defence and counterclaim in which they sought a sale of the property and such further orders as might be required.
The High Court decision
[11] Wylie J considered the relevant considerations dictated by s 342 of the Act and found that unless he made an order, the stalemate between Mrs Bayly and Mr and Mrs Hicks would continue and cause friction and antagonism. The present co-ownership arrangements were unsatisfactory and any renegotiation of the present arrangement would prove difficult. The deadlock precluded both sisters from maximising their interests in Paihia, and from using or developing the property as they saw fit.[2] Looking at hardship “in the round” he considered that the hardship that would be caused to either Mrs Bayly or the Hicks if he refused to make an order would be “largely the same”.[3]
[12] The Judge rejected a submission that Mrs Bayly had contributed significantly more to the property than Mr and Mrs Hicks. Contributions made towards development and maintenance of a property by her and her husband had been more than outweighed by the benefits they had received. He considered the application of Resource Management Act, rates issues and the presence of dotterels. He analysed the valuation evidence for each party in detail and was unable to accept any of the division proposals. The Judge rejected the two-lot proposals of both parties. The difference between these proposals was the position of the dividing line. He observed:[4]
In my judgement, the land breaks down into three main areas. First, there is Onewhero Bay, the development land on the low ridge immediately to the landward side of the bay, and then the land on the higher ridge to the west of the wetlands. Secondly, there is the productive farming land to the west and southwest of the high ridge. Finally, there is the northern headland, which presents considerable development potential.
[13] He concluded that the values attaching to Paihia could be more fairly and reasonably apportioned if a three-lot subdivision was undertaken.[5] He made orders to progress such a concept.
The appeal
[14] Mr Templeton for Mrs Bayly submitted that the jurisdiction to make orders dividing jointly owned land could only be triggered on an “application made”. Once that application was declined the High Court had no jurisdiction to determine any division different to that proposed by the parties.
[15] It was submitted that this limitation is implicit in the Law Commission report that led to the new Act.[6] Reference was made to the pleadings, in particular the appellant’s statement of defence to the respondents’ counterclaim, which referred to the division of the land into two areas of approximately equal value. Mr Templeton relied on s 340 of the Act and the prohibition on a Court making an order subdividing land contrary to s 11 or Part 10 of the Resource Management Act. He submitted that the further powers of the court under s 343 of the Act were limited and noted the fact that a resource consent to a two-lot subdivision as proposed by Mrs Bayly was obtained on 27 May 2011, just a few months before the trial. He submitted that there were particular legal difficulties inherent in the three-lot subdivision concept. There could be significant problems in getting the necessary consents, and the Council would want an expanded reserve. He claimed that the Judge failed to consider adequately the effect on Mrs Bayly of his new proposal, and she has been forced into a process she did not seek.
[16] Mr Templeton accepted in argument that there could be some variation by the Court from the orders sought by the parties. It was a matter of degree. The alternative proposal in the interim judgment involved a new concept of division and he submitted that this went too far.
The pleadings
[17] The issue arises of whether the Judge was acting within the scope of the pleadings. Mrs Bayly’s statement of claim was not limited to seeking relief by an order dividing the land in accordance with the valuer’s proposal. That prayer for relief sought an order for partition of the land known as Paihia “... upon such terms as the Court may deem fit”. The pleading had in earlier paragraphs asserted that in all the circumstances “... it is appropriate that an order be made pursuant to ss 339–343 of the Property Law Act 2007 for partition of Paihia between the plaintiff and defendants”. Thus, Mrs Bayly’s statement of claim did not of itself seek approval of any particular proposal, and on its face left it to the Court to determine an appropriate division.
[18] The statement of defence to the counterclaim sought an order for sale and such further or other orders under ss 339–343 as might be required. The reply to the counterclaim sought no relief. Mr Glover for Mr and Mrs Hicks informed us that prior to the hearing in the High Court his clients had decided not to seek a sale but to seek a specific partition order in terms of their valuation evidence. They did not consider it necessary to amend the pleadings given the breadth of the plaintiff’s pleading, which covered any proposal.
[19] When taxed with the width of the relief sought in the statement of claim Mr Templeton responded that it must be read with the affidavits filed in support, which included the affidavit of a valuer, Alistair Nicholls, in which a specific two-lot subdivision was put forward as a fair division of the land. However, that affidavit cannot be read as limiting the open ended relief sought. That expert evidence was adduced in support of the request for appropriate relief, and can be seen as putting forward a particular proposal favoured by the appellant, for the Court to consider.
[20] In fact the Judge did exactly what the appellant asked the Court to do in her statement of claim. He considered the evidence and submissions and sought to determine the appropriate relief. He was unable to adopt either the appellant’s proposal or the respondent’s proposal as neither would provide a just solution. His rejection of the valuers’ proposals did not mean in terms of the pleadings that the application as set out in the statement of claim had to be declined with the proceedings coming to an end. It just meant that the options for division put forward by the plaintiff and defendants were not accepted and, as the prayer for relief asked, the Judge proceeded to consider as best he could what relief was appropriate.
[21] We note that it would have been open to either party with leave of the Court to have amended the relief they were specifically seeking during the course of the hearing in any event. Although this did not happen during the hearing, it is what has effectively happened following the Judge’s decision; the Hicks are now supporting the Judge’s proposal. That proposal can be regarded now as relief sought by the Hicks. These sorts of changes in position, by parties to a division problem of this complexity, are understandable in applications brought under s 339 of the Act.
Was there jurisdiction for the Judge to advance the alternative proposal?
[22] Mr Templeton argued that the Judge exceeded his jurisdiction and did not have legal power to make the interim order and directions promoting a three-lot subdivision under the relevant sections of the Act.
[23] Up to the time when the Property Law Act 2007 was passed, the court’s jurisdiction to make orders in respect of land where joint owners were deadlocked was limited to the jurisdiction to partition given in the Partition Acts 1539 and 1540 and the discretion given by s 140 of the Property Law Act 1952 to order sale of the land instead of partition.[7] The Court could not order a co-owner to buy out the share of another co-owner, or order a co-owner to sell to another co-owner.[8]
[24] The Partition Acts and s 140 are now replaced by ss 339–343 of the Act. Section 339(1) provides:
339 Court may order division of property
(1) A court may make, in respect of property owned by co-owners, an order—
(a) for the sale of the property and the division of the proceeds among the co-owners; or
(b) for the division of the property in kind among the co-owners; or
(c) requiring 1 or more co-owners to purchase the share in the property of 1 or more other co-owners at a fair and reasonable price.
Section 339(1)(c) fills the previous gap by giving the court jurisdiction to order one co-owner to purchase the share of another co-owner at a fair and reasonable price.
[25] As the commentaries observe, much of the case law prior to 2007 focusing as it did on the limited choices available to the court, will now be rendered otiose by the new discretion clearly given by s 339.[9] The previous division between the Partition Acts, which dealt with division between co-owners and the Property Law Act 1952, which related to sales to third parties, has gone. So has the rigid requirement of the past that the court must make orders if the criteria set out in the Acts were proved. This has been replaced by a broad discretion, where the relevant considerations are set out in s 342. The discretionary factors include “any other matters the court considers relevant.”[10] Section 342 provides:
342 Relevant considerations
A court considering whether to make an order under section 339(1) (and any related order under section 339(4)) must have regard to the following:
(a) the extent of the share in the property of any co-owner by whom, or in respect of whose estate or interest, the application for the order is made:
(b) the nature and location of the property:
(c) the number of other co-owners and the extent of their shares:
(d) the hardship that would be caused to the applicant by the refusal of the order, in comparison with the hardship that would be caused to any other person by the making of the order:
(e) the value of any contribution made by any co-owner to the cost of improvements to, or the maintenance of, the property:
(f) any other matters the court considers relevant.
[26] It seems unlikely that such a broad list of discretionary powers as expressed in s 339(1) could carry the implicit limitation that such powers could only be exercised on the express request of one particular party. Indeed, Mr Templeton accepted that if so driven by one of the factors in s 342, particularly hardship, the court could make an order for sale although the parties had sought division. So too the court’s power to make further orders is broadly expressed. There is a wide range of discretionary powers in s 343. Section 343(g) at the end of the list of orders that can be made provides that a further order can be made that:
(g) provides for, or requires, any other matters or steps the court considers necessary or desirable as a consequence of the making of the order under section 339(1).
[27] We see nothing in the words of these sections to indicate that the powers of the court are only to make an order for division along the lines of that sought by a party to the proceedings. The narrow jurisdiction of the past, split as it was between the Partition Acts and the 1952 Act is replaced by a broad discretion, limited by s 339(1), but beyond that turning on whatever factor appears to the court to be relevant when the broad range of factors in s 342 and the broad powers in s 343 are considered. There must be an application under s 339, and the boundaries of the discretion are set out in s 339(1). However, there is no requirement that the orders made can only be those that were specifically sought by a party. Such a restriction would unduly cramp the scope and efficient operation of what is clearly remedial legislation.
[28] Section 340 of the Act provides:
- Order under section 339(1)(b) subject to restrictions on subdivision of land
(1) No order under section 339(1)(b) (and no related order under section 339(4)) may subdivide land contrary to section 11 or Part 10 of the Resource Management Act 1991.
(2) A court that concludes that an order under section 339(1)(b) (or a related order under section 339(4)) would contravene subsection (1) may make an order of that kind that does not contravene that subsection, or may instead make an order under section 339(1)(a) or (c) (and any related order under section 339(4)).
[29] A limitation of this nature is only to be expected; it would be surprising to say the least if the court had the ability to ride roughshod over the procedures and substantive provisions of the Resource Management Act.
[30] We do not see s 340 as requiring all Resource Management Act issues to be resolved before a hearing. Although in this case the appellant had obtained a resource consent for her proposed division, it can be readily seen that it will often be the case that resource consents to the possible options before the court will not have been obtained at the time of hearing. This should not necessarily preclude a court from making an interim order, setting out the court’s interim view as to the appropriate division, giving the parties an opportunity to obtain the necessary consents or provide evidence as to whether such consents could be obtained. It could be very wasteful of costs for parties to be required to obtain consents to their proposals before they go to court, when their proposal may in the end not be favoured.
[31] The Law Commission report does not indicate, as Mr Templeton submitted, that the court should only make orders consistent with those sought by the parties. The statement he relied on read “[w]hile there is now a discretion, it is likely that the court will not ordinarily refuse to make an order upon an application of such a co-owner”.[11] This does not suggest that the discretion is closed or narrow. Indeed to the contrary, it supports the view that the intention of the makers of the Act was to create a broad discretion. The present position is to be contrasted with that prior to 2007 when there was in many cases under the old regime no discretion and the summary judgment procedure was well-suited to deal with sale and partition applications. Now the summary judgment procedure is not so well-suited to s 339 applications. The authors of Hinde McMorland & Sim Land Law in New Zealand comment that:[12]
... the Court is given a wide discretion in every case as to the order to be made and both parties may raise full and detailed arguments as to the matters bearing on the exercise of that discretion.
[32] The feature of s 140(2) and (3) of the 1952 Act where there was reference to the court making an order “on the request of any party interested ...” is not repeated. Under this new broad discretionary regime it is appropriate for a judge to stand back from the submissions and proposals of the parties, and consider what, on an overview, taking into account the relevant considerations, is the most just and practical way through the impasse before the court, even if the answer may not reflect the orders sought by the parties. By definition the cases that come before the court arise where parties are locked into an ownership position which they cannot resolve because of the positions they have taken, and where a way out may be by a path neither has to that point contemplated.
[33] Therefore, we conclude that subject to the parameters of ss 339 and 343 the court is given a broad discretion and has jurisdiction to make orders and give directions different from those sought by the parties. The prayer for relief in the pleadings in fact reflects that discretion.
The process followed
[34] Of course any consideration on the part of a judge of orders that are different from those actually sought and argued by the parties must be clearly notified to the parties and then, after they have had suitable time to prepare, they must be heard on the new proposal. Mr Templeton did not argue that there had been a breach of the rules of natural justice. Nevertheless, we consider whether the process adopted was fair.
[35] At the hearing the Judge put the concept of a three-lot subdivision to Mrs Bayly during her evidence. He asked where the right-of-way in a three-lot subdivision might go. She saw real problems with the concept. The Judge also asked Mrs Bayly’s valuer, Mr Nicholls, whether he saw any merit in a three-lot subdivision. He considered such a division an option, but saw downsides. The Judge also asked a number of questions of the planning consultant employed by Mrs Bayly, Mr Kemp. Mr Kemp considered that there would be greater complications in dealing with a three or four-lot division rather than a two-lot division, but the land would still be assessed on the basis of a restricted discretionary activity.
[36] In the same way the Judge asked Mrs Hicks what she thought of a three or four-lot subdivision. She responded by saying it could be fair, but had reservations about a subdivision of more than two lots and wanted an opportunity to discuss it with her family and advisers. The issue was also raised when the Hicks’ valuer Mr Scholefield gave his evidence. The Judge’s proposal was consistent with some of the evidence-in-chief by Mr Scholefield, in particular his reference to each party having a portion of the beachfront.
[37] The Judge found Mr Nicholls’ proposal to be neither fair nor reasonable to the parties. He found that the line proposed by the Hicks’ valuer, Mr McBain, was slightly better than Mr Nicholls’ proposal but also unsatisfactory. Like that of Mr Nicholls, it was not sufficiently sensitive to the diverse land areas which made up the property. Mr McBain had simply grafted a greater area onto Mr Nicholls’ proposed partition line. The Judge appeared to have some sympathy for Mr Scholefield’s approach but noted that Mr Scholefield did not in the end make any specific proposals and that there was nothing concrete to approve or disapprove.
[38] So the Judge raised and tested the idea of a three-lot subdivision during the hearing. Then, in proposing this idea in his judgment, he asked for further affidavits from the parties’ planners. He made certain observations in his judgment about the nature of any right-of-way or public road that could be put in,[13] and the need for access to the various beaches.[14] The Judge stated that he would “propose” that Lots 1 and 3 should vest in Mrs Bayly and Lot 2 in the Hicks.[15] He observed that it seemed to him that a partition along those lines would be fair and reasonable as between the parties.[16] However, he accepted that there were downsides which he set out, while observing that these were not necessarily fatal.[17]
[39] In the result section of his judgment he recorded:
[118] I am not prepared to direct a partition on the basis proposed by either Mr Nicholls or Mr McBain. Mr Scholefield’s proposed partition line is too uncertain to either approve or disapprove.
[119] I am prepared to consider a partition which broadly adopts the suggestions shown on annexure E. It is my preliminary view that a division along those lines is workable and that it would be fair and reasonable as between the parties.
[120] It will be necessary for appropriate experts to prepare a modified subdivision plan incorporating, insofar as is practicable, the suggestions I have made which are illustrated on annexure E. To that end, an independent surveyor will need to be retained. So will a valuer. I am satisfied that I have the power to appoint an expert surveyor under r 9.36 of the High Court Rules noted previously. I can appoint a valuer under s 399(3).
[121] The parties’ views as to the appointment of the appropriate experts are sought.
[122] Once the independent experts are agreed or appointed, it will be necessary for me to issue a minute giving the experts the necessary instructions. I would appreciate the parties’ views on this matter as well.
[123] When the Court-appointed experts have reported to the Court, their reports will be made available to the parties. I will then direct the Registrar to reconvene the hearing to give the parties the opportunity to call evidence in relation to, and to comment on, those reports. They will also be able to address any issues arising out of them. No final decision on the appropriate division will be made until that process is completed.
[40] The Judge went on to say that the owners of another neighbouring property should be served. He directed that the parties were to file and serve within 30 working days of the date of his judgment memoranda setting out their respective views in relation to the partition lines suggested by him, and for them to suggest how matters should proceed.
[41] We accept that a judge should not lightly come up with a different proposal to that of the parties. Any alternative must be triggered by a relevant consideration. If an alternative is contemplated, the judge should explore that alternative possibility with the parties before a decision is made to put them to the time and cost of more evidence and submissions. This is what Wylie J did during the hearing. No final decision should be reached until the parties have had a full opportunity to test the proposal and offer evidence and submissions. The judgment read as a whole reflects this, and does not indicate that the Judge has reached any final view on a three-lot subdivision.
[42] Indeed, to the contrary he has been at pains to test the alternative with the relevant witnesses and then to express himself in tentative terms in his judgment. The reference is to his “proposal” and the judgment is expressed to be “interim”. The requirements for a surveyor and a valuer to be appointed, following the views of the parties being obtained, and for the experts to prepare a modified subdivision plan incorporating the Judge’s suggestions indicate no more than a stage in a process. The judgment records that once the Court appointed experts have reported to the Court the reports will be made available to the parties and the Registrar and then the hearing will be reconvened. The parties will be given an opportunity to call evidence in relation to the reports and comment on those reports and any issues arising out of them. The interim judgment specifically states “No final decision on the appropriate division will be made until that process is completed.”[18] The parties are also invited to file and serve memoranda setting out their views in relation to the partition lines suggested by the Judge and how matters should proceed within 30 working days from the date of the judgment. If either party has any proper concerns about process, they can be raised in this context.
[43] All this language indicates that no final decision has been made by the Judge. He has seen the prospect of a different and better way, in his view, to do justice between the parties and is in effect putting the proposal out there for reports from independent experts and ultimately for further submissions from the parties. Only when all that material is to hand will he make a final decision. It is entirely possible that the concept he has in mind may prove impracticable or unfair. We have no doubt that if he formed the view that this was the case that he would not direct a three-lot subdivision.
[44] It is to be expected that in the course of a hearing new perspectives will arise. Parties may wish to change what they have been seeking. The Judge, as in this case, may consider that there may be a better way. The parties always have the option of jointly discontinuing the proceeding. However, that is not an option for one party only, when the other party is still seeking relief.
[45] We further accept that it might be imprudent for a judge to proceed with that judge’s own proposition in the face of implacable opposition from both parties. There would be no jurisdictional bar, but a judge would naturally be cautious about imposing her or his will in such a situation, particularly when a good deal of further action is required in relation to obtaining relevant consents. The Judge had an indication during the hearing from the Hicks that a three-lot subdivision could be fair, and indeed they support the judgment. The position now has similarities to that of a party coming up with a different proposal during the course of the hearing.
[46] Ultimately, the Judge must continue to act in accordance with the principles of natural justice and fairness, and in accordance with the provisions of the Act. We have no doubt, given the way Wylie J has approached the matter to date, that it is his intention to do so. We see nothing wrong in the approach of the Judge and indeed we consider it entirely appropriate in certain cases for a judge to be pro-active in this way. In the present circumstances, the adoption of a staged approach to reach a just result is in our view fair.
Result
[47] The appeal is dismissed.
[48] Costs should follow the event. The appellant will pay the costs of the respondents for a standard appeal on a Band A basis together with usual disbursements.
Solicitors:
Stafford Klaasen, Auckland for Appellant
Paul
Gallagher Legal, Auckland for Respondents
[1] Bayly v Hicks HC
Whangarei CIV-2009-488-547, 19 August 2011 at [2]–[16].
[2] At
[63].
[3] At
[62].
[4] At [52] (citations
omitted).
[5] At
[103].
[6] Law Commission A
New Property Law Act (NZLC R29, 1994).
[7] Compare: Partition Act 1539
(Imp) 31 Hen 8 c 1; Partition Act 1540 (Imp) 32 Hen 8 c 32; Property Law Act
1952, ss 140–143.
The Partition Acts were repealed by s 365(2) of the
Property Law Act 2007.
[8] See
Fleming v Hargraves [1976] 1 NZLR 123 (CA) at 127.
[9] George Hinde and others
Hinde McMorland & Sim Land Law in New Zealand (looseleaf ed,
LexisNexis) at [13.020] and [13.021]; Tom Bennion and others New
Zealand Land Law (2nd ed, Brookers, Wellington, 2009) at [6.7.05]; and
Land Law (looseleaf ed, Brookers) at [5.7.04(1)].
[10] Property Law Act 2007, s
342(f).
[11] Law Commission, above n 6,
at [747].
[12] Hinde and
others, above n 9, at
[13.021(a)].
[13] At
[110].
[14] At
[111].
[15] At
[113].
[16] At
[114].
[17] At [115] and
[116].
[18] At [123].
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