Lange v Lange [2021] NZCA 447 (7 September 2021)

Last Updated: 16 September 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA693/2020 [2021] NZCA 447

	BETWEEN	TERRY CECIL LANGE Appellant
	AND	DEBRA GISELLA LANGE Respondent

Hearing:	19 August 2021
Court:	Miller, Gilbert and Collins JJ
Counsel:	J C LaHatte and JCR Cooper for Appellant M R Walker and B B Gresson for Respondent
Judgment:	7 September 2021 at 11.30 am

JUDGMENT OF THE COURT

1. The appeal against the decision refusing to set aside registration of the Australian judgment is dismissed.
2. The stay pending hearing of this appeal expires on delivery of this judgment.

100. Mr Lange must pay Ms Lange costs on a band A basis for a standard appeal, with usual disbursements. We certify for second counsel.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

TABLE OF CONTENTS

• [1] This appeal concerns an Australian judgment registered in New Zealand under the Trans-Tasman Proceedings Act 2010 (the TTPA). The principal question is whether the judgment ought not to have been registered because it deals with land in New Zealand, at Kaitaia, and is to be enforced against that land.

The Australian judgment

• [2] Debra and Terry Lange began cohabiting in Western Australian in 1994, married in 1997, and separated on 30 November 2013. She brought a relationship property proceeding against him in 2014 and obtained a judgment from Moncrieff J in the Family Court of Western Australia on 12 June 2019.^[1]
• [3] The Kaitaia land had been acquired by the parties in 2010 and registered in Mr Lange’s name. Moncrieff J rejected a claim that he bought it using an inheritance, finding in a judgment severely critical of his evidence and conduct of proceedings that his evidence to that effect was false and the purchase was substantially if not entirely funded using money remitted to New Zealand from the parties’ Australian joint bank accounts.^[2]
• [4] In September 2016 Mr Lange transferred the property to Maria Lange-Tupe, his daughter from a previous relationship, in what Moncrieff J found was a dishonest scheme to defeat Ms Lange’s rights.^[3] He purported to sell it (with certain items of plant and equipment) to Ms Lange-Tupe for NZD 514,633, which sum he advanced to her in satisfaction of the purchase price. He immediately executed a deed of forgiveness of the debt. He continues to live on the property.
• [5] Ms Lange-Tupe was made a party to the Australian proceeding and swore an affidavit in it, but she did not attend the hearing although it had been adjourned to allow her to do so. The Court found that she had contrived with Mr Lange to claim ignorance of the proceeding, but was clearly aware of the challenge to her entitlement.^[4]
• [6] Citing the provisions of the TTPA, which excludes from registration a judgment given in “a proceeding the subject matter of which was immovable property” outside Australia,^[5] the Court declined to make an order setting aside the transfer to Ms Lange-Tupe. It set aside the deed of forgiveness of debt, with the express object of rendering Ms Lange-Tupe liable to pay the purchase price to Mr Lange and so allowing the Court to include that sum in the pool of assets available for distribution between the parties. The Court recorded, for the benefit of any New Zealand court called on to effect registration, that its intention was not to make an order that dealt with immovable property.^[6]
• [7] The judgment identified the property in the relationship pool and provided for an accounting between the parties.^[7] We need not set out the table of assets and liabilities here. For our purposes it suffices to note that it dealt mostly with Australian assets, in the form of land, vehicles, bank accounts, superannuation, furniture, and liabilities. The table did not include the Kaitaia property as an asset. Rather, it treated the loan of NZD 514,633 to Ms Lange-Tupe as an asset of Mr Lange. That asset was brought into account, contributing to a balancing payment to be made to Ms Lange as part of the distribution of relationship property.
• [8] To give effect to the judgment, Mr Lange and Ms Lange-Tupe were ordered jointly and severally to pay NZD 514,633 to Ms Lange, less the amount of any payments made to Ms Lange under a separate order relating to a property at Lockridge, Western Australia.^[8] The latter order related to Mr Lange’s actions in drawing down money under a mortgage, contrary to a court order, in what appeared to be an attempt to precipitate a mortgagee’s sale of that property. It required that he procure the discharge of the mortgage over that property.^[9]
• [9] The Court further ordered that the Kaitaia property would stand charged with the payment of NZD 514,633, and for that purpose Ms Lange was given liberty to register her interest over it, whether by mortgage, caveat or such other instrument as was reasonably necessary to secure and enforce the charge.^[10]
• [10] No appeal has been brought in Australia from the judgment. Relevantly, it has not been suggested that Ms Lange-Tupe could not be made party to it, nor that the Court lacked jurisdiction to make the orders that it did against her.

Procedural history in New Zealand

The judgment was registrable and registered

• [11] It is not in dispute that the judgment was a registrable Australian judgment for purposes of s 54 of the TTPA; it was final and conclusive and it was not among the class of judgments expressly excluded under s 54(2). Speaking very generally, money judgments are capable of registration and judgments dealing with the care or welfare of a person are not. Once registered, the judgment has the same force, and may be enforced in New Zealand, as if it had been given by the New Zealand court in which it is registered.^[11]
• [12] Ms Lange registered the judgment in the High Court at Auckland on 25 July 2019. She has not taken steps to caveat or charge the property. There are certain procedural prerequisites to registration under s 56 of the TTPA; it is not in dispute that these were met. The Registrar of a New Zealand court does not have a discretion to refuse to register a registrable Australian judgment on an application under s 56.^[12]

No timely application to set aside registration

• [13] The TTPA admits limited exceptions to registrability. Relevantly, s 61 provides that a liable person may apply to set aside registration on certain grounds:

61 Setting aside registration

(1) This section specifies the only situations in which a New Zealand court in which an Australian judgment has been registered under section 57 may set aside the registration of the judgment.

(2) The New Zealand court must, on application by a liable person within the applicable period under subsection (3), set aside the registration of the judgment if satisfied that—

(a) the judgment was registered in contravention of this Act; or

(b) enforcement of the judgment would be contrary to public policy in New Zealand; or

(c) both of the following subparagraphs apply:

(i) the judgment was given in a proceeding the subject matter of which was immovable property, or was given in a proceeding in rem the subject matter of which was movable property; and

(ii) that property was, at the time of the proceeding in the original court or tribunal, not situated in Australia.

(3) An application under subsection (2) must be made—

(a) within 30 working days of the New Zealand court after the day on which the liable person was given notice of registration under section 62; or

(b) if the liable person, before or after the end of the period in paragraph (a), applies to the New Zealand court for a longer period—within any longer period the New Zealand court considers appropriate.

• [14] It will be seen that an application to set aside registration must be brought within 30 days of notice of registration, or within such longer period as the court allows. Mr Lange and Ms Tupe-Lange did not comply with this requirement. In the judgment under appeal, Gault J found they had been given notice of registration by 18 September 2019 and 21 August 2019 respectively.^[13] They took no steps until after a sale order was issued on 12 March 2020. On 7 July 2020 Mr Lange moved for a stay of execution. Gault J treated this as an application to set aside registration, and for an extension of time to apply.^[14]

The High Court judgment

• [15] Before Gault J, counsel for Mr Lange and Ms Lange-Tupe argued that enforcement would be contrary to public policy, for if the judgment were enforced Mr Lange would get nothing from the pool of relationship property. The latter claim was factually incorrect, as Gault J found.^[15] He also rejected an argument that registration was contrary to public policy because the Australian Court had ordered that New Zealand land be sold, reasoning that the Court did no such thing but rather ordered payment of a sum of money. Citing the judgment of the Full Court of the Federal Court of Australian in LFDB v SM, in which the same argument had been made, the Judge declined to find that registration was contrary to public policy because a New Zealand court might reach a different outcome had the parties’ relationship property dispute been decided in this country.^[16] He also declined to embark on an assessment of procedural fairness in the Australian proceeding, noting there was no suggestion that the judgment was irregularly obtained or registered in contravention of the TTPA. He accepted that “contrary to public policy” is a narrow exception involving notions of repugnance.^[17] He declined to engage with an argument that the orders made by the Australian court were beyond its jurisdiction.^[18] The judgment had not been appealed. And contrary to an argument that Mr Lange had been treated unfairly as a self-represented litigant, he found that Mr Lange’s claims in his evidence before the High Court did little to impugn Moncrieff J’s strong criticisms of his conduct.^[19]
• [16] Mr Lange and Ms Lange-Tupe also argued that registration ought to be set aside because the subject matter of the judgment was immovable property outside Australia. Gault J was not referred to any authority, but he reasoned that the Kaitaia property was not itself in issue in the proceeding; Ms Lange did not claim an interest in it but rather, at most, sought to set aside Mr Lange’s disposition so it could be treated as his asset for asset valuation purposes. She had actually sought a declaration that he was the sole equitable owner. Moncrieff J set aside not Mr Lange’s interest in the property but his forgiveness of debt, which is not immovable property.^[20] Further, it could not be the case that the mere inclusion of the value of New Zealand land in an Australian proceeding would preclude enforcement.^[21] It did not matter that New Zealand courts lack jurisdiction in relationship property proceedings to make orders over immovable property outside New Zealand.^[22]
• [17] Gault J also drew attention to delay in moving to set the registration aside:

[47] There is another factor, albeit of secondary importance. In this case, as indicated, the respondents are out of time to apply to set aside registration of the judgment. The application for leave/extension of time to oppose registration of the Western Australian judgment, which I was willing to treat as an application for an extension of time to apply to set aside registration of the judgment under s 61(3)(b), was only filed on 2 September 2020. Even after service of the sale order in March 2020 and a visit from the Court bailiff in May 2020, the respondents delayed from August/September 2019 until July 2020 (even assuming the subsequent delay reflected a misunderstanding as to the nature of the application required). They have not provided an adequate explanation for their delay. In the particular circumstances of this case, including the adverse findings of the Western Australian Court, I would have been reluctant to grant an extension of time under s 61(3)(b) if Mr LaHatte had not sought to set aside registration of the judgment now. ...

• [18] Finally, Gault J noted that the immovable property argument related only to a portion of the Australian judgment and would not preclude enforcement of the balance.^[23] This was plainly a reference to s 60 of the TTPA, which permits registration of parts of a judgment (the “registrable provisions”) which deals with a number of different matters.
• [19] Gault J also refused a stay, which was sought on the ground that a separate New Zealand Family Court proceeding was in train. He rejected claims that enforcement would occasion a miscarriage of justice:

[52] I do not consider that enforcement of the judgment would give rise to a miscarriage of justice. Indeed, balancing the parties’ interests, a sale order is in the interests of justice. The prejudice to Ms Lange caused by delay in receiving the benefit of the judgment debt outweighs the prejudice to Mr Lange and Ms Lange-Tupe resulting from sale of the Kaitaia property. Ms Lange’s Lockridge property is at risk because Mr Lange has not complied with the Western Australian Court order to pay off its mortgage.

[53] Mr Lange lives on and farms the Kaitaia property but any prejudice to him resulting from sale is outweighed by Ms Lange’s interests. Also, Mr LaHatte’s claim that the property is now worth less than the debt is not supported by any compelling evidence. Nor is the somewhat inconsistent claim that Mr Lange will lose the benefit of refurbishments and renovations he has spent his own time and money to complete on the property.

[54] In terms of prejudice to Ms Lange-Tupe, I accept the Kaitaia property is her main asset and the farm is her main source of income even though she does not live there. But Moncrieff J found that the transfer of the Kaitaia property and the deed of forgiveness in favour of Ms Lange-Tupe were dispositions to defeat Ms Lange’s claim intentionally by Mr Lange acting with Ms Lange-Tupe. Even leaving aside the finding that they acted in concert, Ms Lange-Tupe’s prejudice is losing the benefit of Mr Lange’s “gift”, which is outweighed by Ms Lange’s interests.

Appeal to this Court permitted, and stay granted

• [20] Gault J refused an application for leave to appeal to this Court.^[24] He took the view that the applications to set aside registration and to stay enforcement were both interlocutory in nature, so requiring leave.^[25] Counsel did not argue otherwise before him. This Court has since held that, an appeal lay as of right against his decision to refuse to set aside registration.^[26] A stay of execution has been ordered on the ground that to do otherwise would be to render the right of appeal nugatory.^[27]

The appeal

• [21] Mr Lange and Ms Lange-Tupe bring the appeal on two grounds: the Australian judgment was given in a proceeding the subject matter of which included the Kaitaia property, and Ms Lange-Tupe will suffer undue financial hardship, amounting to a substantial miscarriage of justice, if execution is permitted.^[28]
• [22] For Mr Lange and Ms Lange-Tupe, Mr LaHatte contended that: Moncrieff J’s focus on the forgiveness of debt was an attempt to thwart the immovable property restriction in s 61(2)(c); to decide whether the property was separate or relationship property, and to bring its value into account, was to make the property the subject of the proceeding; it was improper to separate the sale from the gift, for they were a single transaction; it is illogical to exclude immovable property but allow it to be the subject of enforcement; and there is prejudice to Ms Lange-Tupe because she has been made personally liable for a debt that, because the sale price was arbitrarily fixed, exceeds the value of the property.
• [23] We will examine the immovable property restriction before considering whether the Kaitaia property was indeed the subject matter of the Australian proceeding. We then deal briefly with the remaining arguments so far as they appeal to injustice as a justification for what would be a permanent stay of execution.

What this appeal is not about

• [24] We preface what we have to say by noting the limited nature of the issue before us. This case is not concerned with choice of law or forum conveniens.^[29] It cannot be disputed that Western Australia had jurisdiction, and on the facts of this case was the appropriate forum, to determine the parties’ relationship property proceeding. They were domiciled there during their 19-year relationship and most of their property is there. We make this point because in his written submissions Mr LaHatte argued that a relationship property proceeding ought to be permitted to continue in New Zealand to resolve the status of the Kaitaia property. We record that in argument before us, he confirmed that that proceeding is intended to continue only if the Australian judgment is found not to be registrable.
• [25] Nor can it be disputed that, as David Goddard QC and Professor Campbell McLachlan QC remarked in a 2012 paper, the TTPA jettisoned almost all of the familiar private international law criteria for enforcement of judgments.^[30] The rationale was that any issues the debtor wished to raise in relation to jurisdiction, natural justice or fraud should be raised in the Australian court, not in the enforcement proceedings. To the extent that they were, they were dismissed; and to the extent they were not, it is too late. The remedy for Mr Lange’s complaints about the Family Court’s findings was an appeal.
• [26] It is also clear that a judgment in Australian relationship property proceedings is registrable in New Zealand under the TTPA. Section 2(2) of the Reciprocal Enforcement of Judgments Act 1934 provided that the term “action in personam” did not include “any matrimonial cause”, but there is no such exclusion in the TTPA, and that omission must be taken to be deliberate. It is clear from the working group papers which preceded the TTPA that a policy decision was made to permit enforcement of judgments in such proceedings.^[31] We do not think it matters that under domestic legislation, the Property (Relationships) Act 1976, New Zealand courts still do not enjoy reciprocal jurisdiction over Australian immovable property in relationship property proceedings.^[32]
• [27] Finally, this case is not now about the public policy exception, under which a New Zealand court may set aside registration of an Australian judgment under the TTPA where registration would be repugnant or “shock the conscience”.^[33] The appeal does not expressly invoke the public policy exception to registration; understandably so, because injustice runs the other way. On the Australian court’s findings of fact, which have not been appealed, the Kaitaia property was relationship property which was purchased in Mr Lange’s name and transferred to Ms Lange-Tupe to defeat Ms Lange’s rights. We have referred at [3]–[7] above to Moncrieff J’s findings. It is relevant that time was against Ms Lange, who faced mortgagee sale proceedings against the Lockridge property, and the Judge found that Mr Lange engaged in filibustering and timewasting behaviour to delay the hearing. The judgment is replete with extraordinary and thoroughly documented findings of fact against him.
• [28] The sole question accordingly is whether the immovable property exception applies.

The immovable property exception to registration of an Australian judgment

• [29] The TTPA supplanted common law rules regarding the enforcement of foreign judgments generally, and those of the Reciprocal Enforcement of Judgments Act 1934 regarding enforcement of judgments from qualifying jurisdictions, but it does incorporate rules and principles drawn from those sources. The immovable property exception reflects the Moçambique rule, which holds that at common law a domestic court does not have jurisdiction to adjudicate in proceedings principally concerned with title to or possession of foreign land.^[34]
• [30] The Moçambique rule has often been described as an historical anomaly, the argument being that conflict between jurisdictions can be resolved under jurisdiction and forum rules.^[35] The rule survives, however, and we are not called on to examine its merits here. We do observe that its modern justification rests on considerations of comity and effectiveness,^[36] and those considerations suggest the rule should be limited to claims that directly impeach legal title.
• [31] Relevantly for our purposes, courts may act in personam to enforce contractual or equitable rights to foreign immovables notwithstanding that the remedy may compel someone to deliver up title to land:^[37]

7.72 The justification for this exception is that the court is merely acting on the conscience of the defendant subject to the court’s personal jurisdiction. Instead of telling the foreign legal system who owns the land, the court is telling the defendant what they must do to comply with their personal obligation — on pain of contempt, but not eviction. ...

7.73 Although the in personam exception has been criticised for permitting the court to do indirectly what it may not do directly, it is sound in principle and justified in policy. It reflects a fundamental distinction between a personal order against a defendant properly subject to the jurisdiction and an order that purports to determine the legal ownership of land in a way that will (and must necessarily) be good against the whole world. An order in personam may have the practical effect of conferring title to the plaintiff (where for example the defendant complies with in order to effect a conveyance) but that does not mean the court is interfering with the sovereign jurisdiction of the foreign court.

• [32] In Christie v Foster, this Court was concerned with an equitable claim, in the form of estoppel and an institutional constructive trust, to land in New Zealand.^[38] The plaintiffs were Irish trustees of a deceased estate. The defendant protested the jurisdiction of the New Zealand courts, invoking the Moçambique rule. Ultimately what was sought was legal and beneficial ownership of a share in the land. The Court nonetheless held that the claim was in personam because it operated on the conscience of the defendant.^[39] The Irish Court could order an expectation-based remedy — transfer of ownership — through its control of the Irish trustees.^[40]
• [33] The TTPA may be said to adopt the Moçambique rule, but in a strictly limited way. The s 61 exception to enforcement is confined to judgments in an Australian “proceeding the subject matter of which was immovable property”.^[41] Similar language was found in s 6 of the Reciprocal Enforcement of Judgments Act 1934, under which courts held that a proceeding for payment of mortgage arrears was not an action the subject matter of which was immovable property,^[42] nor was an action for damages for breach of a contract for the sale of land.^[43] It could hardly be argued that the TPPA, which was enacted to liberalise trans-Tasman enforcement, takes a more restrictive view of the phrase than did the Act, or for that matter the common law under the Moçambique rule.

The Kaitaia property was not the subject matter of the proceeding

• [34] In our view the Kaitaia property was not “the subject matter” of the Australian proceeding. The subject matter was the establishment and distribution of the parties’ relationship property, which was not confined to the Kaitaia property. It could not be said in the circumstances that so far as it dealt with the Kaitaia property the judgment was in respect of a different matter or gave different kinds of relief.^[44]
• [35] Nor was the proceeding directly concerned with title to or possession of that property; it dealt with the property only by bringing it into the asset pool. Ms Lange did not claim title to the land or seek possession. The order setting aside the forgiveness of debt was an in personam remedy, not a remedy against the land. The outcome was an order for the payment of money by vendor and purchaser, not an order that the property be transferred from the latter to the former.
• [36] It is not necessary to decide whether enforcement might extend to the order that the Kaitaia property stand charged with payment of the judgment debt, or to the Australian court’s order that Ms Lange might caveat it.
• [37] We reject Mr LaHatte’s argument that the transaction was in substance a gift to Ms Lange-Tupe and it was impermissible to sever the sale from the forgiveness of debt. This was an invitation, which we decline, to revisit the findings of the Australian court, which found the transaction was a device employed to defeat Ms Lange’s rights; it did so by transferring title from Mr Lange and by destroying what would otherwise be an asset, in the form of a debt owed by Ms Lange-Tupe.

Injustice to Ms Lange-Tupe

• [38] Ms Lange-Tupe and Mr Lange brought the appeal together, but before the hearing she signalled that she intended to take no further part in it. She was aware of the hearing. Mr LaHatte does not now have instructions for her, but he did advance an argument that enforcement would cause her hardship.
• [39] This is a makeweight argument. Hardship is not a ground for setting aside the registration of an Australian judgment under the TTPA, and we need not consider whether there might be circumstances in which it could contribute to a public policy justification for setting aside registration.
• [40] In any event, the hardship faced by Ms Lange-Tupe is no more than is inevitably associated with the obligation to pay a judgment debt. Further, her conduct does her no credit. She was a knowing party to and beneficiary of Mr Lange’s attempt to defeat Ms Lange’s interest in relationship property. Her correspondence discloses an assumption on her part, predating the Australian judgment, that her ownership was secure because New Zealand law would not come to Ms Lange’s aid.
• [41] Mr LaHatte argued that Ms Lange-Tupe is at risk of having to disgorge more than the property is worth. This claim goes to the merits of the Australian judgment, not its registrability. It is an argument that the sum payable ought to have been fixed by valuation or by reference to what the land is sold for. We observe that the assets transferred to her included vehicles and other plant and equipment and it remains to be seen what the land will fetch on sale. There may be a question whether Ms Lange‑Tupe ought to be required to pay more than the assets transferred to her prove to be worth, with costs; but if that possibility should eventuate, any remedy lies in an application to the Australian court.

Disposition

• [42] The appeal against the decision refusing to set aside registration of the Australian judgment is dismissed.
• [43] The stay pending hearing of this appeal expires on delivery of this judgment.
• [44] Because she did not formally participate in the hearing, we will not award costs against Ms Lange-Tupe. Mr Lange must pay Ms Lange costs on a band A basis for a standard appeal, with usual disbursements. We certify for second counsel.

Solicitors:
Ord Legal, Wellington for Appellant
Todd & Walker, Queenstown for Respondent

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^[1] Lange v Lange [2019] FCWA 128 [Western Australian judgment].

^[2] At [108].

^[3] At [120].

^[4] At [6] and [58].

^[5] Trans-Tasman Proceedings Act 2010 [TTPA], s 61(2)(c).

^[6] Western Australian judgment, above n 1, at [121]–[122].

^[7] At [156].

^[8] At [220(4)(a)].

^[9] At [220(1)].

^[10] At [220(4)(c)].

^[11] TTPA, s 63(1).

^[12] Section 57(1).

^[13] Lange v Lange [2020] NZHC 2560, (2020) 25 PRNZ 583 [High Court decision] at [24].

^[14] At [25].

^[15] At [27].

^[16] At [28]–[29], citing LFDB v SM [2017] FCAFC 178, (2017) 256 FCR 218 at [36]–[37] and [43].

^[17] At [30], citing Lane v Questnet Ltd [2009] NZCA 578, [2010] NZAR 210 at [47].

^[18] At [31].

^[19] At [32].

^[20] At [43].

^[21] At [44].

^[22] Property (Relationships) Act 1976, s 7(1).

^[23] High Court decision, above n 13, at [47].

^[24] Lange v Lange [2020] NZHC 3151 [High Court leave decision].

^[25] At [25].

^[26] Lange v Lange [2021] NZCA 104 at [27].

^[27] At [29]–[30].

^[28] It appeared Mr Lange would argue hardship on his own account, but no such argument was advanced before us.

^[29] It has been noted that courts do not invariably take a symmetrical approach to assuming and recognising jurisdiction: Jack Wass “The Court’s In Personam Jurisdiction in Cases Involving Foreign Land” (2014) 63 ICLQ 103 at 126.

^[30] David Goddard and Campbell McLachlan “Private International Law: litigating in the trans‑Tasman context and beyond” (paper presented to the New Zealand Law Society Seminar, August 2012) 1 at 5.4.

^[31] Trans-Tasman Working Group Trans-Tasman Court Proceedings and Regulatory Enforcement (December 2006). A number of the examples used in the report concern relationship property.

^[32] Property (Relationships) Act, s 7(1).

^[33] Reeves v One World Challenge LLC [2005] NZCA 314; [2006] 2 NZLR 184 (CA) at [67]. See also Maria Hook and Jack Wass The Conflict of Laws in New Zealand (LexisNexis, Wellington, 2020) at [5.254]–[5.267]. It ought to be unlikely that an Australian judgment would itself be contrary to public policy in this narrow sense, but the TTPA envisages that there may be circumstances in which its registration in New Zealand would become so.

^[34] British South Africa Co v Companhia de Moçambique [1893] UKLawRpAC 53; [1893] AC 602 (HL). See also Hook and Wass, above n 33, at [7.63].

^[35] Christie v Foster [2019] NZCA 623, [2020] 2 NZLR 238 at [74].

^[36] Hook and Wass, above n 33, at [7.85], cf Griggs Group Ltd v Evans [2004] EWHC 1088, [2005] Ch 153.

^[37] Hook and Wass, above n 33 (emphasis in original).

^[38] Christie v Foster, above n 35.

^[39] At [82].

^[40] At [87].

^[41] TTPA, s 61(c)(i).

^[42] McCormac v Gardner [1937] NZGazLawRp 71; [1937] NZLR 517 (HC).

^[43] Gordon Pacific Developments Pty Ltd v Conlon [1993] 3 NZLR 760 (HC)

^[44] TTPA, s 60.