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High Court of New Zealand Decisions |
Last Updated: 27 February 2019
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CIV-2016-404-3010
[2019] NZHC 154 |
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BETWEEN
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DAVID MARK HULL, MICHELLE KAREN HULL and TRUSTEE MANAGEMENT LIMITED
Judgment Creditor
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AND
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JOHN BARRY CALVERT
Judgment Debtor
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Hearing:
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7 February 2019
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Appearances:
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L H George and K A Logan for the Judgment Creditors No appearance for the
Judgment Debtor
S C Bird for Top Energy Ltd
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Judgment:
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14 February 2019
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JUDGMENT OF GAULT J
This judgment was delivered by me on 14 February 2019 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
..........................................
Counsel/Solicitors:
Mr D M Hughes, Ms L M Van, Ms L H George and Ms K A Logan, Anthony Harper, Solicitors, Auckland
Mr R C Mark, Solicitor, Kerikeri
Mr M Heron QC, Barrister, Auckland
Mr S Bird, Greenwood Roche, Solicitors, Auckland
HULL v CALVERT [2019] NZHC 154 [14 February 2019]
[1] The applicants are trustees of the Hull Family Trust. They seek to enforce an earlier judgment of this Court against the judgment debtor, John Barry Calvert (Mr Calvert). That judgment, for $672,297.12 plus GBP502.05, was entered by way of summary judgment on 21 March 2017.
[2] The applicants obtained a charging order on 12 May 2017 against Mr Calvert’s interest in a block of land situated on Whakataha Road, Waimate North, Northland (the land).1 The amount charged is $672,297.12. The land was valued at $845,000 (plus GST, if any) in September 2018.
[3] There has been no appearance for Mr Calvert in the proceeding, either in relation to the application for summary judgment or since. It seems Mr Calvert no longer lives in New Zealand. He could not be served personally, but has been served in the United Kingdom in accordance with an order for substituted service.
[4] The applicants now seek orders enabling a sale of the land such that the proceeds can be used towards satisfaction of the judgment debt.
[5] The registered proprietors of the land are Mr Calvert, Marites Calvert (Ms Calvert) and James Hay Pension Trustees Ltd (James Hay) (as joint tenants2).
[6] The applicants’ enquiries indicate that:
(a) Ms Calvert is the estranged wife of Mr Calvert.
(b) James Hay is a pension fund registered in the United Kingdom.
(c) The registered proprietors of the land were, at a time, trustees of Mr Calvert’s United Kingdom pension scheme trust, the Stratford- Upon-Avon Butterfly Farm Executive Pension Scheme (the Pension Scheme).
2 Section 47, Land Transfer Act 2017.
[7] The applicants submit that Ms Calvert and James Hay no longer have any interest in the land.
Background
[8] On 5 February 2018, the Court made an interlocutory order under r 17.45 of the High Court Rules 2016. It named parties with a potential interest in the land, and ordered them to file an affidavit with the Court stating the nature and details of their interest no later than 20 working days following the date that the last party is served with the order.
[9] The Court also gave directions for substituted service. Ms Calvert was served by emailing the documents to her last known lawyer in the United Kingdom. He responded on 10 April 2018 stating:
... I have no instructions from Mrs Calvert. Her last communication (telephoned) on this subject was quite some time ago, when she said I was not to be involved in any way. That was what I told the lady (presumably Mrs Hull) who telephoned me from New Zealand.
[10] Ms Calvert did not file an affidavit stating the nature and details of her interest in the land.
[11] There was no response from Ms Calvert following service of the present application.
[12] Nevertheless, there is some evidence indicating that Ms Calvert has no interest in the land.
(a) A Deed of Appointment and Removal of Trustee and of Amendment dated 8 June 2007 indicates that she was removed as a trustee of the Pension Scheme.
(b) Although her English lawyer stated in an email to Top Energy’s lawyer on 11 March 2014 that she remained a trustee, he said that she did not believe she was a beneficiary.
(c) On 14 May 2014 Ms Calvert signed an Authority and Instruction form to transfer the land, but the transfer was never effected as Mr Calvert did not also sign.
[13] James Hay has confirmed it has no interest in the land. It had transferred its interest to Rowanmoor Group plc (Rowanmoor) on 20 June 2006. It was removed as a trustee of the Pension Scheme by the deed of 8 June 2007 and Rowanmoor was appointed a trustee.
[14] Rowanmoor has also confirmed it has no interest in the land. It was replaced as a trustee of the Pension Scheme by Colston Trustees Ltd (Colston) by way of Deed of Removal dated 21 February 2011.
[15] Colston has not filed an affidavit stating the nature and details of its interest in the land, but earlier, on 8 June 2017, Mr Richard Francis of the Curtis Banks Group, which is believed to have administered the Pension Scheme, stated in an email to Michelle Hull that Colston “no longer have involvement” with the Pension Scheme and for any further queries please contact Mr Calvert.
Orders sought
[16] Ms George, for the applicants, acknowledges that this is a novel situation and proposed two potential avenues to grant a sale order:
(a) an order directing the Registrar-General of Land to alter the record of the title for the land removing Ms Calvert and James Hay so that Mr Calvert is the sole registered proprietor, pursuant to s 16 of the Land Transfer Act 2017 and/or the Court’s inherent jurisdiction, and then ordering a sale pursuant to r 17.58 of the High Court Rules with net proceeds of sale to be applied towards repayment of the judgment debt (and accrued interest) and any costs order, with any remaining proceeds to be held in Court; or
(b) an order that the land be sold pursuant to r 17.58 and directions as to distribution of the net sale proceeds as follows:
- (i) an order that James Hay and Ms Calvert hold the land as bare trustee for Mr Calvert, and directions that the net proceeds of the sale be applied immediately towards repayment of the judgment debt (and accrued interest) and any costs order made; or
(ii) in the alternative:
(A) directions that the net proceeds of the sale of Mr Calvert’s registered interest in the land be applied immediately towards repayment of the judgment debt (and accrued interest) and any costs order made, and
(B) directions that the net proceeds of the sale of James Hay’s and Ms Calvert’s registered interest be held in Court for a period of two months or an alternative period the Court deems appropriate, and
(C) an order that James Hay and Ms Calvert be served with notice of the proceeds being held in Court and be directed to file affidavit evidence in the Court before the expiration of the two month period, or an alternative period as the Court deems appropriate, should they consider that they have an interest in the proceeds, and
(D) an order that at the expiration of the two month period (or the period deemed appropriate by the Court), if James Hay and/or Ms Calvert have not filed evidence claiming an interest in the proceeds, the net proceeds of their respective share in the proceeds be applied towards repayment of the judgment debt (and accrued interest) and any costs order, with any remainder to be held in Court.
[17] In each case, the applicants seek a direction that any sale of the land is conditional upon the purchaser granting an easement to Top Energy Ltd on the terms set out in an Agreement to Grant Easement. Top Energy Ltd has a registered caveat over the land in relation to an easement, and consents to the sale on this basis.
Land Transfer Act 2017
[18] Section 16 of the Land Transfer Act 2017 provides:
16 Court may make orders relating to records of title
The court may, in any proceeding under this Act, direct the Registrar to—
(a) cancel the record of title for any estate or interest in land or cancel any entry on the record of title; or
(b) create a new record of title for the estate or interest; or
(c) alter the record of title for the estate or interest in the manner directed by the court.
[19] Ms George submitted that s 16 of the Land Transfer Act 2017, which came into force on 12 November 2018 and replaced s 85 of the Land Transfer Act 1952, has materially broadened the circumstances in which the Court can grant relief. However, Ms George accepted that s 16 applies only “in any proceeding under this Act”. This proceeding is not a proceeding under the Land Transfer Act 2017. It is unnecessary for me to say anything further on the scope of this new provision.
Inherent jurisdiction
[20] Ms George submitted that I could direct the Registrar-General of Land to remove Ms Calvert and James Hay from title pursuant to the Court’s inherent jurisdiction. She also referred by analogy to the possibility of a vesting order under s 52(1)(b) of the Trustee Act 1956, which applies in respect of trust property where a trustee is out of the jurisdiction or cannot be found.
[21] The inherent jurisdiction was used to grant a sale order in Official Assignee v Mathieson.3 Ms George acknowledged that the facts of that case are not directly
3 Official Assignee v Mathieson [2017] NZHC 2349.
analogous but submitted it is an instance of the Court exercising its inherent jurisdiction to grant a sale order in respect of trust property.
[22] In that case, the judgment debtor was a former trustee and judgment had been obtained against him as registered proprietor of the property on the basis that he held it entirely for the benefit of the trust, and specifically limiting his personal liability to the assets of the trust and subrogating the judgment creditor to his right to be indemnified from the assets of the trust.
[23] Gendall J found it was clear that that the registered proprietor held the title to the property in trust for the new trustees, subject to his right to be indemnified from the property for the judgment debt. Gendall J concluded that the Court’s jurisdiction to make a sale order derived from s 12 of the Senior Courts Act 2006, which continues the Court’s jurisdiction prior to the Act and its inherent jurisdiction. The application was one made in equity, the debt was long outstanding and a sale order was appropriate in the circumstances. These circumstances included that a sale would enable the Official Assignee to recover debt owed to the current trustee who had been made bankrupt and distribute proceeds to her creditors, and that the current trustees had refused to conduct an orderly sale.
[24] Here, the issue is whether it is clear that registered proprietors other than Mr Calvert hold the title to the land in trust for him.
[25] Ms George also referred to cases in the trust law context where the Court has exercised its powers under s 52(1)(b) of the Trustee Act 1956 to make vesting orders in respect of land held in trust where a trustee is out of the jurisdiction of the Court or cannot be found.4 Those cases involved applications by current trustee(s) in circumstances where a former trustee had been replaced but refused to cooperate with the current trustee(s) to transfer a property. That is not the situation here, where the applicants are third party creditors and the position regarding other trustees is not entirely clear.
4 Hood v Burnes HC Hamilton CP53/00, 12 December 2000; and Beavan v Rea [2016] NZHC 518.
[26] In this case, I do not consider it appropriate or necessary at this stage to exercise the Court’s inherent jurisdiction to alter the title or make an order under the Trustee Act 1956 to vest ownership of the land in Mr Calvert alone. While there is some evidence suggesting he is the sole beneficial owner, I consider the appropriate and prudent course is to order a sale and give the potential remaining owners one final opportunity to indicate whether they claim any interest in the net proceeds of sale.
[27] Rule 17.58 of the High Court Rules provides:
17.58 Court may order sale of property affected
(1) On an application by the entitled party or by the person affected by the order, the court may do 1 or more of the following:
(a) order that any property affected be sold:
(b) give directions about the sale as the court thinks just:
(c) order that the net proceeds of the sale be paid into court, to be paid out later in accordance with the result of the proceeding or an order of the court.
(2) The court may act under subclause (1) when making an interim charging order or at any later time before judgment.
[28] I have no doubt that a sale order is appropriate. The judgment debt has been outstanding since March 2017. Mr Calvert is believed to be outside New Zealand and his interest in the land is his only known significant asset. The land has effectively been abandoned and rates have not been paid since 2013. Further delay could compromise the value of the existing charging order.
Form of sale order
[29] Ms George handed up a proposed sale order at the conclusion of the hearing.
[30] Ms George acknowledged that the existing charging order relates only to Mr Calvert’s legal interest in the land and does not purport to cover the beneficial interest he is now said to have, which would make him the sole beneficial owner of the land. Hence, the registered interests of Ms Calvert and James Hay are not within
the scope of the existing charging order even though it is now said that those interests are held on trust for Mr Calvert. Accordingly, r 17.53(e) has no application here. That rule provides that a charging order may charge personal property, including an interest in land held under or because of any express or implied trust for the liable party.
[31] Having not altered the title or vested ownership of the land in Mr Calvert alone at this stage, I need to address r 17.74(3)(b), which provides that, unless the court directs otherwise, all sales must be of the estate, right, title, or interest only of the liable party in the chattels or land put up for sale.
[32] Ms George properly drew my attention to Chambers v Grindley.5 In that case, MacKenzie J held that, in the case of a writ of sale under r 599(3)(b) of the previous High Court Rules, only the judgment debtor’s joint interest in the property could be sold, not the property as a whole. In that case, the judgment debtor was a joint tenant in a family home and the other joint tenant opposed sale of her interest. That is not the case here. This case is also different from Chambers v Grindley in that the other joint tenant in that case clearly had an interest in the property, both as a joint tenant and under the Property (Relationships) Act 1976. Here, it is doubtful whether Ms Calvert has an interest at all. The evidence before me suggests not.
[33] Rule 599(3)(b) was in similar terms to r 17.74(3)(b) in relevant respects. I agree with MacKenzie J in principle that the proposition that the whole property may be sold to meet the debts of one joint owner is a startling one, contrary to the basic principles of property law. However, the words “unless the court directs otherwise” in r 17.74(3)(b) make express provision for the Court to make such an order.
[34] In the different and unusual circumstances of this case, I consider it is appropriate to direct the sale of the land, not only Mr Calvert’s legal interest in it. The benefit of maximising the sale price far outweighs the theoretical risk that Ms Calvert may have a beneficial interest in the land and has missed an opportunity to oppose the sale. There also seems to be no question of her having any sentimental or commercial reason for wanting to keep a right to possession in the land.
5 Chambers v Grindley (2007) 26 FRNZ 739 (HC).
[35] While I am not prepared to determine at this stage that Mr Calvert is the sole beneficial owner, the theoretical risk in relation to Ms Calvert can be sufficiently protected by allowing her to make a claim to the proceeds of the sale within the specified time.
[36] Likewise, I will give Colston Trustees the same opportunity out of an abundance of caution.
[37] With this modifying direction, I make a sale order, with the High Court Rules in Part 17, Subpart 6 applying, as further modified in the annexed Schedule.
Gault J
SCHEDULE
To the Sheriff at Auckland
(a) necessary tools of trade to a value not exceeding $5,000; and
(b) necessary household furniture and effects to a value not exceeding
$10,000 (including the clothes belonging to the liable party (and his family)).
(a) receiving and recovering—
(i) the money payable to you under any cheques, bills of exchange, and promissory notes; or
(ii) money secured by bonds or other securities for money; and
(b) selling the liable party's seized chattels; and
(c) selling the land at Whakataha Road, Waimate North, Northland, being Lot 1 on Deposited Plan 359752 containing an area of 24.0600 hectares more or less and contained on Certificate of Title Identifier 243031 (North Auckland Registry) (the land), with any sale subject to a condition that the purchaser will grant an easement to Top Energy Ltd on the terms set out in the Agreement to Grant Easement annexed and marked “A”.
(a) discharging all claims that have priority over the entitled party’s claim;
(b) paying the costs and expenses of executing the sale order;
(c) paying the entitled party a sufficient sum to satisfy the amount required by the sale order, but limited as follows:
(i) in the first instance, limited to the liable party’s one third legal interest in the land, with the remaining proceeds to be held in Court for a period of two months from service of notice of the proceeds being held in Court on the liable party, Ms Calvert, Colston Trustees and Curtis Banks Group;
(ii) at the expiry of the two month period, if none of these parties served has filed an affidavit claiming an interest in the proceeds of sale, paying the entitled party the remainder of the sum sufficient to satisfy the amount required by the sale order;
(d) paying any surplus to the liable party.
Notes
1 The money seized will not be enough if it—
(a) cannot discharge any claims that by law are entitled to be paid in priority to the entitled party’s claim; and
(b) cannot pay the costs and expenses of executing this order; and
(c) cannot pay—
(i) the whole of the judgment debt sought by this order of NZ$672,297.12 plus 502 English Pounds;
(ii) interest on the judgment debt at 5 per cent, as prescribed in the Judicature (Prescribed Rate of Interest) Order 2011 and s 87 of the Judicature Act 1908, from the date of judgment (21 March 2017) until settlement of sale of the land; and
(iii) the applicants’ reasonable solicitor client costs, with the quantum of costs to be determined on settlement of sale of the land.
Date:
Deputy Registrar
AGREEMENT TO GRAf\)T EASEM FI\IT
I AIKOH E TO WIROA £T0KV TRANSMISSION LINE
20\3
Adclress: '4é Oak leigh Road
St rat ford Upon fivon, (V 377LS
E ma iT‹ john.b.cak'ertg ntlwor Id cont TOP EN ETtGY LIMI7EO {Top Energy]
#ddress: Jofin Du tier Ce ntre (tesel 2)
60 j‹e rIkerI goad, Ketikerl I›Fone: ]09} 4O7•06O4
OVFRVT6W OF PROJECT
Top E i›ergy proposes to construct a s ingle or douhle circuit Billy vol tage Ira nsmlss ion line fi'om W roa to It aitaia, to iin prove the capacity, cecurit y and reliability of the electrJcit y djs I iibutign network In jIje rai Noills region.
As pan of I we project, Top Energy pro}›oses to construct j›arf of Erie 4 ra*\sjolssIon line h•ovBh the Owner's property.
LEGAL DES'CRIPTION OF ).AND
An estate in lee simple In 24.0600 hectares more ar less beIng Lot 1 Deposited Plan 3597 '3 corija\ned in computer fteeHo]4 register 243031 {Mortfi Auckland Registry}
NfiJtiit E OP EASFY ENT
Bighls to tonvey etest ricity, telecom n un icat ions and com piner iiiedla,
INDICATIVE PL 'N Qf EASEMENT AREA AMD WORKS
As s]Jown on the plan atiacfied as Scfiedu]e :t.
oEscRieTtoN or WoRBs
The inst aIlat Ion of 6 elect rital ronducror above the Land and o*Je optical ground were cable {OPGW]. The etnoval of veget at ton {refer Schedule Z). As shown on tfie indie at we plan atl ached as schedule z.
fiz.60o.oo
{plur sST )l any), being tile
total compensation, payable as foI]owsi
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$160.00
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]belng job of the total) {deposit} payaI:be on satlsfactlon of tfie Owner
¢ondltlon (refer cleuce 7.T{a));
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$z,280.O0
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]being a funfie‹ BOX of the total) ]uncond)t)onaI Payment} peyafile
on satisfaction of the Top Energy Conditions ]refer <Ieusa
7.1(6]);
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$160.00
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{being balance top oftlte total) {Final Payment} payable at tf+c tlrtje
thal Top Energy receives from tile Owner all T Tie required
do<umentatIon to
enable registration of the Easement Instrumerrl (refer dause ?.:t[c)).
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OR THIS AGR£EMEI'')T
DEFIM)WONS UND INT6RPßETATION
J.1 Definitions: In this 4greemen4 (lprludlng t) e ScHedules):
Agreement meens tfiis agreement, IncludIng file schedules att aclied.
Compensation means the compensetion as set out on {›age +wo of j fils Agreement, sub]ect jo ad]usT ment in accords»ce ahh clauses 4.B and 7.3.
CondltToiu means aily Kondition set out In clause 3.1.
Deposit means the inslaJment of Compensa lion referred to as IT+e Deposit on tke page ten of this Agreement ar+d payable In accordance with clause 7.J{a].
Dbturbarice means any disturbance, damage or Toss incurred or suffered byt
{a] the Owrierj or
{c) any occupied of tire land undert aklng, wilI+ Top t+›ergy’s k‹ owledge and fi› compliance cikF t\e terms of thls Agreement, normal harming operations on
during const rucl on of tlje Works wfilch is Jot remedied by Top Energy under clause 6.6, for exen ple but wit flout limit ation, a business loss in respect of a business locajed on the tar«t
Easement and Easement Jnstrument means an easement in gross for rtgfils to convey electricity, te)ecommunIca tlons and computer ntedia over fke Easement Area, on tfie terms set out In the form of easement Tnstrume»t attached as ScfieduJe
Easement Ara» means the easement areo shown on I fie PIa+ , subject )o ad}ustit+enj
Mergency Situation means a situation In wfiich there Is a probable danger to Gfe or propert y or Tn n e4)ate risk to the continuity or safety of suppJy or 4Istr)fiut Ton of elect r)city.
Entry Notico njeons any notlre given by Top Energy pursuant to clause 6.j.
+nacI4Inery and all materlaIs and iten s required for II+e Purpose of exerclsJng any of tFe rigfits under thls Agreement.
rlnal P•yment means the lnstalmenr of conJpensatlon referred to as tfie rlrial Peyment on page two of tfi¡s Agreement and payable In accotóatc w!th clause
Land means I fie land desri ihed on the front page of I his Agreen\e nt.
Ov•ner rHeans Ihe Owner, i he Owners successors a url/or the legible red proprietor{s) tot the title belog of ilie land.
Owner Ceriditlon means I we cond¡tion set out In clause 3.:t(e).
PIan means tfie tndkative plan atlashed as Sofiedule 7 {CAD Filei SECAP Plans — Celyert, John— ID E4-7 DecoiJlber 2Oz2 - Version 2).
Prejlrtjinary Works means the wurM described In clause z,j, or any part of sucfj
Project means tile )nsta)Iat)on of a single or double circuit electricity transmission line witfi a nominal operating voltage of up to 110k\/ and other electrical and communitelTons works together with all associated works installed o+ constnJcted
Top Energy means top Energy L¡mited, Its successors and permitted trai\sferees. assigns, lessees, sublessees and licensees toget leer with Top Energy’s servants, agents, employees, wOrkers, in'vItees, licensees and contrertors.
Unconditional Payment means tlje instaJment of Compensation referred to as tfie Untondlt onal Payment on page two of I fits Agreement and payable In accordance
Vefilcles mea 4s four wheel drives, motorblkes, cars and rrucks, tractors, frallers, graders, pile drivers, drilling rugs, cranes, helicopters, aircraft, exceve4 ion and eartfimovNg equJpn›eet aed any other macfilnels) andYor apparatus requJred for Jfie pu+pose ot exercising the rTgtjts granted by tlJis Agreement, whether wheeJed or tracked.
Working Day means any day of tfie week o\her II+an.
(e} Saturday, Sui\day, WaI1angI Oay, Good Friday, Easter Monday, Arizac Day, II+e Sovereigns Oirthday, Northland Anniversary Day and Labour Day; and
Ib) A day i I he period commencing on 4he 74"‘ day of December In any year and ending on tile S" ‹Jay of January in I he foIIow)ng year, botfi days
Wott‹s means t)je works described on the front page of this Agreement (subject to change ii1 accordence wltfi clause 4,2} and in tile Easenjent Instrument. for the pu tpose of const tuning the Project, but does not include t fie Pre))mlnaty Works.
1.z Interpretation: In the Interpret ation of tIds Agreement unless the context otherwise
{a) the I\eadIngs and subheedTngs appear as a matter of convenience ar+d shall not affect the interpreter Ion o( II\Is Agreement;
]h} referen ces to sections, classes and schedules are references to sectioils, clati£e s and schedules Tn tfiis Agreement;
(c) references to any statute, reguIatk'n or other statutory instrument or bytrw shall be deemed to be references to tI e statute, regulation, Instrument or bylaw as from time to tkne amended and Includes substitution provisions that substantially correspond to tljose referred to;
/d) tfie sTngulor Tr+eludes the gJural aod ence versa and words Tncorqoraflng any gender shall Include every gender; and
{e) where ar›y petty comprises rn ore than one person, each person shah be deemed to have entered into thls Agreement ]o1nily and severally a nd the provision of this Agreement shall fled such persons jointly a nd each of them severally.
PRELIMINARY WOgKS
2.:t
Preliminary Works: In ronsiderat)on of Top Energy’s obligation to pay 7 he Deposit, the Owner agrees to allow Top Energy to enter end re-enter the land ct all reasonable I imes from the date of I his /\greement, wiih or without sucfi assistance, machinery, vehIc)es and equTpmenl as Is reasonafly necessary' for tfir purposes of inspecilng the land and carrying out preliminary testing and invertlgatTon of tFe
ConsuIzatTon' Prior to undertaking like PreTlmlnary Works, Top Energy shall use reasonable endeavours to ronsu)t wltfi the Owner regarding I+ie t1mIng and conduct of the Preliminary Works.
2J reinstatement: Following complex ion of Ilie PrclTrrilnary Works, Top Energy shall relnsf ate the Land as nearly as Is reasonably ptact Icable to the condition existing immediate ly ptlor to en try by Top £nergy.
3.1 This Agreement is subject to tfie following ConditTons‹
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Owner Condition
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Date for satisfaction
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(a) Tfie Owner obtaining and providing I o Top Clergy cor+sents Iron any
mortgagee, clJargeholder, e*Jcumbran¢ec or grantee having
an interest In
tfie fand, to tile rights granted under jhis Agreement and a covenant In the
form ret out Tn Schedule 4.
Jfie Owner shah do al) tl4ings reasonably necessari to obtaln such
convents, and shah provTde ropíes of the consentr to Top
Energy.
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:I mod th foIIoc'Mg t fie date of hits Agreement
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 |
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{bJ Top Cnergy obt aImpg all resource and oJJJer
conscuts and app osals, and all property and other rlgfiu, wfiiclj it
considers +tecessary or des itable fnr tfie Project.
The Owner:
written approvals nr consents requesied fry yep f netgy; and
{i() shall not otajec\ to, advocate against, oppose or impede any
action take n by Top Energy, nor pto<ure or assist any o
tT\er
in order to obl am any such consent s, 4pprova is a»d rights and
undertake the Project.
This Condij ion Is inserted for the henertT of Top
(cJ Top Energy resolving to proceed w'ilfi the Project wit] a route a
IJgnnient wT iclj passes over part of the Land. Thus Condition
is inserted for
tfie henefij
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GB moijtfis following the date of \fi4s
Agreement.
18 months following the date of II\B Agree menf.
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*.3
4.›
Satisfiaction or waiver of Top Energy Conditions: Top Energy may declare tfie top Energy Condil ions satisfied or waived eIt her by notice In w rlllng to the Owner or the Owner’s soljcitor, or 6y glvln to the Owner an Entry Not i¢e.
Nofi.satlslacjIon of any 6ond]tIon: If any Condilion Is not satisfied or waived by the date fur satisfac4 ion, elf dler pany may thereafter unIi) the CoodTl io+1 IS satisfied of waived, cancel tIjis Agreement t›y girlng notice to the otfier, Ip which ease any Deposit paid shaII be rei alned try I fie Owner, and log Energy rhc\7 have r'o obl\gal\oa to make any ojI+er payments of Co opensation.
CHARGES TO SLA I, WORkS AN0 CASE MENT II''ISJ 8UMENT
Ofianges: Tlje Owner acknowledges trial changes are possible to the Probec4, the Plan and tfie Works, In particular dvrlng tfie process o( satlsfylng II+e Top Energy CondilToi s.
Permitted Changes: To/› Energy may at any time prior to finally ation of 4 Ije plan and Easement Instrument make sucfi cfiat\ges 4 o tfie Easement Area, the design of the
Works, and jlie Easextent Instrument, as It Rons Iders in Its sole discretion to be necescary or desirable for the Project, provident tl›aI:
{a] I fie cHanges do not extend boy Cnerg/ s ‹ights beyo\ad those contemplated by ITIIs Agreement; and
-7
(b) the location of a conductor suppon structure/pole must be within a 25m radius of the location shown on the Plan unless ground conditions (for example, soil Instability or the presence of archaeological sites) render it infeasible to locate a conductor support structure within this radius; and
« notwlthstandtn8 any relocatton af the Easement Area required to accommodate a change of location of the œnductor support structure/pole
from that shown on the Plan, the wldth of the Easement ATea will be no
greater than the width ofthe Easement Area sfiown on the Plan,
4.3 consukatlon: Top Energy shall use reasonable endeavours to consult with the Owner lfi respect of any proposed changes under clause 4.2 so as to minimise any adverse effect on the Land or on the Owner’s use and occupation of the Land, and If the Compensation should be Increased on account of any such changes, shall adjust the Compensation acCofdlngly.
5.1 Grant of r1ghts: Followlug satisfaction or waiver of allCondîtions:
(a) the Owner grants, and Top Energy accepts, the Easement over the Easement Area on the terms set out In the form of the Easement Instrument attached as Schedule 3 subject to any variations provided in this Agreement;
{b)
Top Energ/ and the Owner shall be baund by the Easemeht Instrument as if It had Deen executed by both parties and registered against the title to the Land, fts terms being Implied Into this Agreement; and
(c) the Owner agrees to allow Top Energy to enter, re-enter and remafn on the Land at all reasonable times, with or without such persons, plant, machinery, Vehicles and Equipment as Is reasonably necessary to perform the Works and to exercise the rlghu or otherwise Undertake any action provided for or contemplated in this Agreement and in the Easement.
5.Z Top Energy not obliged to enter: The Owner acknowledges that the grant under dause 5.1 does not oblige Top Energy to enter onto the Land or undertake any Of the Works or otherwise eyerclse all or any of M rights under the Easement.
ENTRY ONTO LAND
6,1
Entry Notice: where Top Energy Intends to enter upon the Land In the exercke of any one or more of the rTghts set out in clause S.1 it will give to the Owner at feast 10 Working Days’ notice before such entry of its Intention to do so, with the Entry
(a) the location of the piopnsed entry;
(b) the area on which the WorM will be undertaken by Top Energy;
(c) the nature ofthe Works to be undertaken;
(d)
the date and time of initial entry;
(I} I he nature of aTT otfier wott‹s tfict are to be undertaken oj+ file Land In accordance with the rights granted pursuant to clause S.1.
6.2 O+vner may set condltlons' Upon receipt of the rntry not Ice the Owner may set reason a Me condW iotis relating to the fJming of entry and the access route but those condTtTons may not:
{a} delay entry by Top Energy by more than Ts Working oays; or
{b) require money ary or other Rons ide la tion; or
(c) otherwise defeat rfie ability of top fl nergy to exercise effect IyeIy If+e rigl+Is granted under ctajJse S.T.
6.3 Dlsgutes: Any dispute between tfie Owner and Top Energy ii1 relation to the terms of tlae Entry ttot]ce or the condtt)ons set by the Ou/ner pursu a»t to clause G.7 shall constitute a dispute wfilcfi is to be resolved using tfie dispute resolution procedure set out In clause :t9.
Specific oblTgafions' Top Energy and the Owner agree to fi'e bound by any obligations set out In Schedule 2 wH)ch are specific to the Land.
Mlnlmlse Interferenc e‹ When exercising Its rtghts under thus Mgreen›enI, Top E nervy will use its tea soi\a ble efforts to ‹ause es little Interference as qincticab[e to II+e
the Le ed, but witljouj In any may limiting tfie rigfijs of tlje Owner to a claim for Disturbance.
Rc]nsta te ment: NJ pon co npJe IIon of I Fe Works. Top Energy shall a I ids cx pensc ]n a]T If+Ings make good ai\d rein sta te the land to ensure tfiat the hand Ts left Tn as nearly as possible It\e saws coodTtbn es \‹ wee prat to the exercise of Top Energy's Sgt Is under this Agreement w]flch may innode, for exemp)e but without iimit•tén:
(a} relnsletlog oz repaIrT«g any fe«es or otMr Tinpr@emcn\s which haYe Seen removed or damageai
(b ] removing any brldges, culvert s, roads and tracks coristrvted or› the I and, or alternatively leaving them where rI e Owner so requires or wfiere Toy› Energy requires them to remain lot continued access jo t fie I asenJent Area jn wHIcIj cese they sf+aJT become gart of the Land and owned by the Osmu; and
Owne r sha11 facilitate 1 ljJs precess by not o•er•stocking or pver-grading).
6.7 Top Enetgy’s employees, agents, etc: TeP EnerBY may use Its nominated
emplo@es, agents, consultants or contractors to perform the Works.
6.8
Oosts: Top mercy will meet the rul I ‹outs of the Works under4 a£en by Tofi £nergy.
6. T 0
Entry or+ non-working Days: For I tie avoidance of doubt, Top Energy may enter onto the Land ond u Jdeneke any Works on any dey of the year including days whirh are not Working Days, subject to tfie provisions of the Entry Notice given by Top Energy under clause G, T.
emergency 6ltuetTons: In the event of an emergency SItuetIo•J Top Cnergy can exercbe a right of entry to 4he Land y/Itfiout giving 4n Entry Notice save that Top Energy win) glve tfie informatToti requI+ed by an Entry Notice for such emerged+cy wo›t‹ as soon as pracjJcab)e thereafter.
Tlmlng of payments: Afle conapensat)on b payehle by Top Er+orgy to the Owner as
(a) The Deposit to be pald following satbfaction of the Owner Condklon, which payment is not- tefund»bfe in tt›e event tI at this Agreement Is ancelk d fot non<atisfactfon of any Top Enetgy Condition; end
fb) The Uncond]tlonal Peyment to be paTd fo)TowIrig satlsfgctlon of gje Top
țc) TFe r)nal Payment to be paJd aț the jline tbat don Energy receNes (+onJ afle Owner the dorumentatTon referred to Tn cleuse 9.a, sub]ect to ad]ust ment as set ouț jn cleuses 4.3 and 7.8, together with comgensatlon for any DTsturbance Incurred or suffered durlng const ruMlon of the Works.
7.2 InvaI@si TI+e paymer+ts to be mada by Top Energy pursuant to etause 7.E are subject to Top Energy tecelvTng appropriately prepared §woIces, Including GSf number and details wrere the Owner 1s roglstered for GSM purposes.
,.a
Changes In Easement Areai In 4lie event, tFat following final survey of the E asement Area. the Easement pea Is found to be greater or lesser tf+an t fie awa specified on the Plsn by a ma‹gk+ exceeding SP, tf+en t\\e ¢or+ipensatian shatl lie sted proponTonately.
Full and flnal settlement: The Conjpensat in, any compensat]on for Disturbance, end jhe otI+er payments set out Tn this Agreem+ent and llje Easement Instrument. shall 6e in full and fina) settlement of oil claims by the Owner ar)s§1g whether i›J relation to the granr of I lie Easement, Tn)urious effecllon, loss of pi'ofit or otherwise
Erie Owner acknowledges thaI Top Enetgy may operate the Egulpnjent at any voltage up to and inc{udIng 710 kV alJowTng for standard operating (Iuctuation+ In supp)y voTtages.
8U8VEY OF GAsEMrNT AgEA AND APGISTRAT]ON OF EASEMEN7
Survey: TI+e parties ecknowTedge tfiat the Easement Area b s++b]ect to survey. Once Top Enetgy has finaTlsed the Easement Area tnd Easemen I Instrument, top Energy,
at its cost, sfiall use reasonable endeevo iJrs to have the suryey of IIje Eagement Area completed and I he survey plan deposIted.
9.2 Consentsi Top Energy sfiall attend to all necessary pTannTng, resource consenting, IeBa) and otJJer matters, at Its own cost, to eT\able the s flrvey plan to he deposited and ffie Easement +egislered.
9.3 Owner to assist: Tfie Owner st\at] co•operate fully. an6 promptly sign sun› doc+iments provided to tM Owner by Top Energy w)tfiin z0 Working Days of receipt end do sych acts, matters and Ifiings as sFaIT be Inquired of the Owner to enabJe deposit of tfie survey plan defining th Easement Area and registjarlon of lfie Easement Instrument at LINZ, including obtainng all Mortgagee and other consent s referred to Jn clause 3.1{a}.
j0
10. t
legal: Top Energy sljell reimburse all I Fe Owner’s reasonable IegaJ costs In con nection wlt fi tfje perusal, advice and execution of thh Agree+tie nt and registration of I Fe Easement Instrument including aI) costs and expenses Incurred In oblalnTng all required approve]s and/or consents to thls Agreement and tfie Easement Instrument under rlause 8.E(al.
j0.2 velu#tion: Top Energy shall reimburse ltte Owner for tfie cost of obtaining an Independent valuatioW assessmen I of the Compensation offered by Top Energy 4o tfie OYyner for the purposes of thk Agreement.
)J,2
£evaat registration: Pending registration of the Easement Instrument, to ensure twat the provTsfons of this clause and jFe existence of tkis Agreement are drewn jo Ihe attention of any proposed transferee or assignee of I lie Owner's interest In 4l+e Lend or I fiis Agreement, Top Energy wlll at Its expense regIs\er a caveat against tfie certificate of jitIe to the Mnd to protect its Interest under this Agreement,
Consent to dealings' Provided that IT s Interests under time Agreement remaln protecTed, 7op Energy sTiall froi» jinde to time wfien req« fred by file Owner to give its consent as caveator, sign sucH document, and do sucfi acte, mat1ers and tfiings as shaft be neœs sory lo enable tire Other to regisler and dealtng againsj the cerf Itlcate of title to I fie Land an J shaft bear all legal end other ¢orts reasor+abIy incvrred ïn furnlsh)ng sucfi consent includlng Chose of tt+e Owrxzr.
Sanding notices: All *\otTces or other conJmunlcatlom to 6e given under I file Agreement shall be Tn wetting and shall be se»t by any of tfie foIbwI+Tg means:
{a} 8y deTTvering it qenonelly or sending It by prepaid Posi to 4 fie pany to the address notified In writing by eljleer party to tHe of Ref;
{7:i) By Lending il to the fax number the party was specitied;
(c} 0y Lending il tp the email address that the party Ijas spectfied,
t2.2 delivery: t4 olices s[+aIl be deemed to be given as follows:
(a) A nojIce sent by pre-paid post shall be de emed to be given two Working Days after {h +l exclus we of) tI+e date of mailing.
(b] A notice delivered by hand is deemed to have been received at the tln e of delivery.
e notice sent by enJe)I or facslmTle Is deemed to flare been received at the lime of rransm)ss)on provided that a confJrmat Ion of transmission is received by jhe sender or, Tn the case of an e•ratI, It+e receiving part y acknowledges receipt of the email,
]d)
Notices served after Spm on a Working Oay, or on a day wfilch Is ilot a working Day, shall be deemed to haye been served on tI e next succeeding Working Oay.
z2.3 Contacts: The InIt)a) not Tiled addresses and contact references of tfie parties are as sej out on the front page of this Agreement.
12.4 changing tor•tects! Any party may change its notified addresses and contact numbers by notice In wrJllng to tfie otfier party.
DISPUTE RESOLUTION
33.z Informal resolutions If any dispute arses between tfie Owner and Top Energy concerning the r¡ghts er+d obligations contained within this Agreement, the pan+es will enter Into negoIiaIIor+s in good fafth to resolve tfie dispute themseNes or jHrough any Informal dispute process they agree upon,
13,2
Mediatlon' jf the dispute Is not resolved within 50 Working Days then any pany may at any time serve a mediation notice on tfio otfier party requiring tfie dispute be referred to mediation. Idle mediation notice shall set out the nature of the dispute. The panles sfieTl in good faljIj endeavour to agree upon a medla for with]n s Working Days of tfie dale of service of jFe mediation notice. JI tfie part fee c»nnor agree on the mediator, tfie President for the lime being of he New zealx nd fayz Society {or any successor organisation) or the President's nominee will appoint an independent mediator. The mediator’s costs are to be borne equally by jhe panles.
z3.3 Arblvet)on: if ltte dispute Js not resolved wllfiln 20 Working Days of the dale on wl defy tile n edlatlon r+otIce Is served, the panIes wit) submit jo tbe a tbITraIIon of ali Independent arbltretor appoInte‹4 )o)n4 Iy by I I+e parties. If the panles cannot agree on tlje arbitrator within a further TO Working Days Il›e PtesTdent for jfie llme belng of tfie New Zealand law Society {or any successor organisation] or the PresIde H‘s nominee will eppolol an independent arbitrator.
Loyy; Any arbtt ration proceedT»gs wT)I be conducted In accordance with the Arbitration Act 3996 and the substant Ave law of New Zealand.
t4 
Top Energy: Top Energy may assign, sub-license, novate or otherwise transfer Ifie
\ytioIe, but not any part of, fts Interest in tfils Agreement to any pa+ty, provided tfiat
- 12 -
the (ransTeree or assgnrr party et+Ten into a deed of roreriaM c'Ttfi Eric Owner, prepared by 7oq Energy’s solicitors at Top Enetgy’s cost, to comply with the provts)ons of HJTs /''greement Ïn place of Top Energy.
14.2 Owner' Eye Owner shall noj transfer or assign any of its interest In If+e Land or this
Agreement or grant any Interest, mortgage or charge over the land unless first obtaining from lfie assignee, transferee or recipient of the Interest In the Land a
deed of covenant y/ith Top Enetgy twat It clit comply witTi the provisions of this Agreement instead of the Owner or, in the case of the grant of an h terert In the hand, )n addition to the Owner, with the deed o( covenant to be generally Jn the form annexed hereto ag Schedule 4.
zs.t
Non-merger: Exrept to the extent that the provisions oontained in this Agrcement ere reproduced in, or substentlally provided for Tn, trie Easement fr+sirunJenl. trie provisions of tkls Agreemem shaft not metge in or be eat)ngtiIshed by IM tegjstraj ion of the Easemem Instrument, but sfiall remein in ÏuII forœ and effect and operetiye ar+d enforceable accordé+g to their jenor wfjile tHe Owner remalns t fie regfstered propriotor of fée land.
Further ass+jrancesi file parties shell always act In good faith a»d do all ects and things and execute all documents reasonably necessary to give full and proper effect to this Agreement, Eare+nent Instrument and the right s and Interests granted fiereTn and those subsequent documents, and eacfi shall enter Into such further documents and regts\rable Instruments (Including co-operating to permli sucfi Instruments to be registered and obtalnlrg any mortgages or ct+argefio)der’s consent) necessary to more fully glve effect to If+e same ond to preserve the lntegrlty o] the long term arrangements Agreed upon,
15.3 SeverzbTllty: jf any part of this Agreement )s held by any court or admlnTM ratTve kody of competent )urtsd]ct]on to be Illegal, voJd or unenforceable, such detetrtilnotton shaft not knpalr the enforceafitMty of TGe remaTclng parts oT Ills Agreement.
No weiver: no waNer of any of \ fie pro'flsIons of thJs Agreement, nor any consent to any departure from tfils é'greement, wlll be effective unless glYen In writing, and fhen it wTIJ he effective only ]n the sqe<lflc Instance and for the spec¡fIc purpose for wfilch it Ts glven. No failure, aelay or fiJduJgence by eTtlter party In exercbing any power or right under thb Agreement will operate as a watver of such power or ttght and a single exercise or partia] exercise o( any sucfi power or right will not preclude furtfior exerclses of that power or itgfit, of ihe exercise of any other power or rigtjt under tfiis Agreement.
IS.5
Entire Agreement: ThTs Agreement contains all terms of the Agreement between the qartTes and supersedes afT prior communications, reqresrritatJo+\\ ggreemenj s or undentandIng between the parties whh respect to tile subject matter of this Agreemenl.
.z
‘
tf+nV Asr+4oMsr eg‹e+
i3
£XECUTIOf'I
Serialure:
Aad rest:
ssu,o «„o«aeARxxcAtv*n1
Witness
Sjgnatt re' " . ‘".
name (In full)- “”””
Adclress:
sjGnED for and on behalf of TQP ENERGY LIMITED
by:
f4
¿' „. ’
’
“””'
‘
!' ”
“
’
tness
s gna ure: ”‘ same in full); ”
Occupation: "
Address.
lsite speclflc condiuons appll cable to jhe Land)
Top Energy may remove and treat (species dependant} t roes or other vegetello \ on the Easement Area and following a Top Energy risk assessment ojay aIso remove and treat
]specjes dependent) gy jfittj Ttees or other vegetation on tI+e Land outside I fie Easement Area twat pose a res k to the transmission line. All tree meterlal will ba cut Into manageable lengths and the vegetation n ulcl+ed and left on tfie land. Top E•\ergy shal) not be obliged to reinstate the vegetation foJlowlng completion of tfie Works, Erie Owner m oy plant pasiute on the area wfiere vegetation has heeij removed.
J/\M£S HAY PEN SION TITUSTEtS LIMTTEO ]tI›e Company) warran ts and undenakes to Top E t›ergy trial.
Ia[ The Complny Is validly Incorporated Tn t we United Kiflgdoiri and fias full legal capacity to enter Into this Agreement;
\b} Tf+e Compaq Teas full powct and a»thor)ty \o execute It+)s Agreement; aljd
]c) If+e metFod used for execution of this Agreement Is binding on the Company.
{laserpent inst ru ment)
Land ftegistration 0ist‹icr
)4ortfi Auckland
JOfjN eARqY CULVERT end JANIEs HA¥ PENs)ON TAUSTEg LIMITED
Grantee
TOP ENERGY L]TvjITfD nt Kerlkeri
Grant of I asemeril
The Grantor being I he fegtstered proprietor of the servient tenerne+ups) set out in st tiedute G grants to the ‹sraatee {cod, If so stated, in gross) the eedeme a* Js) r e* out In schedule A, e WMu4J mitfl Ilie rights a nd powers or provisions set out in the Annesore Scheduvets]
8cGefiute fi Continue in addil taunt Annexure Sct'edule, I]
|
Purpose (Natore and
ezi cut) or
|
Shewn (plan
reference)
|
Ser•)enl
Tenement
{Computer
Register)
|
0 omlnanl Tenement
  |
|
Refit to Convey electricity, telecommunlceiions and computer media
|
harked “ " on Oeposlted Plan
|
243051 {north
|
1 n gross
|
Anpe#ure Schedule 7 Page of
f agement Instrument
Easmiena or pro/is 8 prendm rights and powers {Induding tetms, <ovenents and
<ondATons)
Oeleta phioces Iy [ ] ond h'iseri memorandum number os required,' contlnue in oddirfonof
Accenture Schedule, If requked
he provlsions set out in the
attached memorandum.
substituted] by:
jfie )mpIIeJJ righjr and powen are
fiereby
U mess otherwise provided below, tfie rlgl ts and powers Implied In
specified ckisses of easement are lTiose prescribed by tHe Lafid
Irans fer
RegiJlal tons 2TXT2 and/or Scfiodule Flye of the Property Law gN 2007
0eJe/e q/+roses in ond insert Mrmorondum number or require; continue in additions]
Annexure Sri edJJ/e, J/ required
r0Riv› 0r #EGISîP4etc MEMORAI DUM SECTION t55A, LAND YAANSFEA ACT :t9S2
Class of instrument Tn yzl Vert provMons In4ended to be lncluded
(a) where any new roads and/or access tmcks on the land are to be co+ist+\icted such will be co* slruclerl I+y tire Grandee as far es is
\,\.4 to enfer and remain on the base+oent Aree and sum otf›e+ part of tt+e I.and as ts reasonabÏy neœssary In the clrcumstancea viiie or without Ve hlcles, macfi)nery a+xt/or EquTgmen4 ar+d wttfi such personnel (Includlng Its employees, pente, contrecton and/or consultants) for the purposes of exerclsTng thr Grantee’s rights under tI›Is Easement Intl rument and/or for accessJng otfier ad]oinIng land on whicfi tfje Grantee fias sTmilar rights as lfiose set out In Itils Easemenl Instrument;
LI.S to Construct, ]nsp<ct, use, repalr, maintain, tenew, alter, remove and modify roads atid eccess tracks on tfie band, to modify ed)»cent fences
{Tncludli›g boundary Ie nces) on the Land and to remove or trlm
vegetatioT\ on the access Iracks at the com of the Grantee To
tfie extenj tfiat
is reasonably necessary for the Grandee to exercise its rlgfits under I his
Easement Instrument wltll t)Jese rigfits
to be exerrTsed on the
take avay
simples from the Land for a+\a)ysis;
(c)
), 1.3 to u ndenake all tests. Inspections. Investigations an4 surveys tfiat
are reasonaMy necessary for the Grantee to exercise its
rigfits under tfils
Easement ITisjrument and in so doing the Grantee may:
(a) drlll for core samples and d)g test pile;
{b) insta Il and malntaln test lng and monltorlog equlpmerTt:
to convey,
conduM, send, distribute, pass, corwen, transport, Irans+nIl and receive elect
hefty and tekicommun)catIons signals and
computer media by means of tbe
JA/orks;
t. I.2
easement righu and powe‹s {including terms,
covenants and ccndlttons)
Ï Grantee’s RJghts
J. i The G
ra niee sttaI1 have Ihe followlng rlgfits en d powers:
).z.z to Cons\rucl Hue Works and to remove. Inspect, use, operate, repaJr maintain, renew, after, rep)ate, upgrade, edd to and modify the Works or any part of tfie Works on the Easeteent Area;
practically possible to enhance tfie land tise opelotions or+ tfie land by the Grailtorj
(b) if during the course of the constrjjctlotj of TI+e Works on tlje Land jhe Grantee uses any existing roads and/or access twcFs on tfie fans then tfiese will be repaired and/or maintained as is necessary by the Granlee so that aT the toncly sion of tfie construruon of the Works sucfi roads aJjd/or access tracks are left jn as nearJy ns pcsslhle II\e same condition as they were In at jfie lime of first entry onto the hand by the Grantee;
if the Grantee }n tGe exerrJse of arress jo tfie feud for the purposes of iilspection, use, tepalr, maintenance, renewa], alteration, replacement, upgreding, addition to or moa)lication of the Y7ona uses roads and/or access track:s on H+e tand JI sfiaJ) at tbe conc)usfon of such period of acress repair and/or maintain fhose rosds and/or access tracks to ensure thai the same are left in as nearly as possible the sante condition as they were in at th+e time of tfie commencement of the exe+rise of the Grantee’s rights hereunder.
to Construct gates wftfiin fences (Inc)udIng boundary fenres) located on the Lar+d and to inspect. use, repair, maintain, renew, alter. remo've dna modlfy ttose gates at the cost of the Grantee to Erie extent tfiat j+ reasor+ably necessar'y for jfee Grantee to exercise Its rtghts under this easement )nstrumenL
1.z.7 io dear and keep tf+e Easerr+ent Area clear of trees, sfirubs, vegetation, srr++cture+ [)nc)udJns fences\ eanfi, gravel and stone, and to clear and keep such other pan of tfie Land as 1s reason*bly necessary In flue circumstances clear of any trees. s firubs. vegetation, s\ruptures (Including fences). sob. eartfi, gravel and +tonz wfiicfi is or Ts )Ike)y to 6e or become, In tile rea4oneble oplnlon of the Grentee, a danger or Fazard ro the safety or operation of tfie Works, wITI Impede I he Grantee's access to the Works or will of fierwTse inte+Yete with fi'ie Grandee's rtgfifs u++der trim EasemeeT Instrument;
to open up the soft of tf+e Easement Area end erce•ate or remove timber, vegetation, soil, eenfi, gravel and stone from Ihe Easement Aiea to tire extent necessary for the Grantee to exercise ltd lights under lh¡s Easement Instrume n\; and
to temporarily occupy any pan of tTie Land twat Is reasonably necessary In the clr¢umstances In or4er for the Grant ee to exercise any of its rlgfits under this Eascn\e of Instrument Including two rigs t to Construct tbe Works aijd in doing so tfie Grantee jnay fence off sucfi part or parts of tf+e pccvpiea area as is reasonably necessary for a 7cmpotary Per]pd or Ternporary Periods for health and safety purposes (subject to clause 2.1 of the:: Easement Instrument),
S.2 In uiJdenaklng any one or more of the rights aid powers **'*f'Y BE "ted tfie
2J -
I
- 22
Erie Gramee will fiear tfie co$ts of Inanaging vegetation on I
je EasemenI Area
{excJudI+ g pasture hand) Including romovTng trees and other
vegetation but w)h not be respo nslfile for tfie cost of cnnlrollJng
weeds or
remm'lng ony vegetation wfilch Ts planters by d\e Grottlor In brea«h of
this Easement Instrument.
Erie Grantee will t›ear the wl›ofe
cost of i»alntaJning the Worfo apart frojn any WorM wtitch the Grantor and
Gswtee
have agreed are \o become the property of
Easement InstrumenI for
whom the Grantee can recover the costs under TfiIs Easement
Instrument.
The Grantee will upon request proylde to the Grantor copies
of file Grentee’s plans
during any entry onto I fie Land I:iy )he
Grandee to construct, repair, maintain,
modlfy, rzpTace, renew or remove the
Works or any pan of the Works, ml+tell Is not remedled I:iy t fit Grantee under
cleuse 2.z, for
example but sit hour IimitetTao, a business loss Tn respeel of a
business located on tfie tend, tI+e Grantee rf all compensate the
Grantor ar
› he occupier, as the case may be, for sucfi disturbance,
any occupier
ot ti+• land undertaking, wltfi the Grantee’s knowledge and )n
compliance with the terms of this £asemenl Ir+strument, norma] farming
operat)onr on the Land, Tn partkular sharemllklng or forestry,
{c)
the
land; or
{b}
z.z.2 Will meet the full costs of T 7+e Wo M It undert akes;
j.2.3 ror the avoidance of doubt tfie Grantee may enter on to tf+e hand and
undenake tke V/orks on any day of the year including days
which are not working
Oays subject to the provalons of the Enjry Mot Ice given by the Grantee under
clauses s.2 and 5.2 of this Easement
Instrument.
Grantee’s obllgatlons
2.I ”(he Grantee will use Its reasonable efforts to cause as little Interference as praclical to the Grancor, any crops or livestock and any farming acttvIt]es on tfie Land. Tbe Gmntee sfiall at its expense in all things make good and reinstate the Land gs and wljen same sh+it) require reinstatement to ensure tljal I he L4mJ Is left In as nearJy as possible tfie sanje conrTltlon as it Seas at jhe I Ime of the comjuencement of the Grantee’s rights 7+eraunder. In particular, but without ltmttaton, when exerclskg its rTgh\s uoder th¡s basement Instlament, the Grantee shal] ensure Ir leaves the gates as it finda them and reinstates all feI\ces wFlrh are taken down so I flat t fie Grantee does noj negaT ively affect the stocfi proofing of the rand.
Where any distcrtiance, damage or loss is incurred or suffered by:
(a}
z.2.y luay use lts nomTnated employees, agents, consultanJs or cont
ractors to
’ •’
indicating the agreed access touTes over jhe Land used ky I Ije
Grantee in accessing
2,G 1'he Grantee fias no obligation to const ract the
Works or to ronvey elect rica)
energy and power or I eTecommuijlcat)orrs IT rouglj the+», after const
ruct‹on,
2.1 In 1he event tfiet the Grai\tee shell e)ear the
£a•emant Area and/or any other }›art
of jfee Land or open up the soil of Ie+j+e as cont empTaled by clauses j. K7 and/or
).).g I eteof, I Fe resultlrfg mate+iaI shall be removed by the Grandee from
the Land and deposited off-site at the expense In aTT
thIngs of the Grantee
unless the Grantor and \ fie Grantee sFaII otherwise agree.
3.j
Subject To
the restrict ions set out In thls EasenJent Instrument the Grantor may
use,
occupy end enjoy that part of the surface of the £ascment Area writ rh Is
not occupied by tfie Works for normal farming
operations Inc)udIng
cro(›gIng end I\otticull are to a maximum height of 2.5 metres and
grazing.
4.1 T)\e Grantor will not, win Trout 4I e prior written consent of I
fie Grantee {y/tilcfi will
not be unreasonably \vIt fifield or delayed). do, procure, assist or allow
tlje following ro lie done:
alter or disturb I fie present grades and contours of the surface of the
Easement Area except In the course of normal farming and
grezlng operations ]but
s object to tfie restr)ctlons set out In If+Is Easeijjent InstrjJment);
4.J,1 erect any bvltdlng or otT er struclure (including fences) on tlje
Casement
4.I.3 plant any vegetation on Use Easement /''ree (excIudir+g
gesture, crops and
IjortTcull ure to a maximum fieiglTt of 2.s metres};
4. T.4 operate any EShipment or Vehicles on trip Easement Area wltTjIn a
minimum clearance dfstance of 4 metres from any eJect richly
4ransnjtssTon line
conductor,
elevate or deposit material of the Easenjeijl Area;
access routes over the Land or damage t\e surface of t we agreed access
routes;
kno•viagl( cause or pefrn0 flooding of the Payment Afea e•repI there such f food ing occurs uaturellg a nd 1s 6eyond the control of I he Grantor;
4.I.8 Ij fit any fires or burn off vegetation wftfiin t] e E++s<ment Area;
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Any dispute hefwee« the Grantor and the Grantee 7++
relation \o the te ms of \he Enlcy Notice or of the conditJons set by Ilie
Granj
or pvrsuam tg thls clause sFafi constitute a dlspufo Mitch Is to be resolved
+isIr+g I t+e dispute resoMtlon procedure sM out
In clause Tt. o4 tills
Easemer+I IosTrument.
Otherwise defes\ It •bltIty of the Gr\atee to
exerhse effec1Jvely the
r)gt+ts granted under t fjJs Easement
Jnstrument,
SP z
4.4.9 ohjer\ to, advocate against, oppose or Im(›ede any consent, epproval or right sought, or any action taken, by the Grantee pursuant to Erie Gran\ee’s rlghts under cleuse 3.z;
4.:t.JO do any other thing on llje Land wfiich t\›ay cause damage to
tlje Woits or endanger the contin«iry or safety of
the supply and disk
rIbutIoi\ of electricity or off\erwIse Impede, Interfere with or prejudice any
right of the Gran\ee set out In
clause z.z,
Access
\ I+are the Gro»tee together with or through Its engineers, consultants, employees, contractors, workmen and anyonp eJse authorise a by tfie Grentee Intends to enjer upon the fend fo exercise and give effcci to the tjgtits of the Grantee es lisied ¡n classes 3.:t.a through z.).g of Ikbs basement Instrument the Grantee must give at lea st TO Working Days not Ice ("lfie Entry f'Iottce”] to the Grantor exce(›t In an
£ mergency Situation, when prior notice Is noi required and the provisions of clause
S.6 of t I is Easement Instrument appIy.
s.2 An E n4 ry f'iotTce Ts to Identify tre Works tfie Grantee intends Ie c»rry out wlth the Entry Wotlce to sqecTTy:
s.2.3 tfia location of tile proposed entry;
5.2.2 tfie area on which j he Works wll] be undertaken by I) e
Grantee;
s.2.3 fi+e nature of the Works to be underteken, S.2.é tfie date end time of initial enl ry;
s. 2.s the )engtI+ of time tnet If+e Grantee expects To be on tne hand; and
S.7.G th nature of all other wake tT\at are to be undertaken on lfie Land in accordance with the figfils granted pursuant to clause z.E.
Upon teceTpt o'f zn EeTry Notke front \te Grantee of )ts tnten\)on to
e«erctse the right of entry provkled for In clause 5.1
the Grantor may set
reasoijable condlréns relatlng ro the timing of entry and the access
ro+ite but If+ose mndltlons may ngt'
5.3.E 0eTay the exercise of entty t›y tfie Grantee by morr than z5 yyortlng Da\'s; or
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TT\e Grantee, in entering 4I\e fen4, will lake an reasonable rteps to
njinlitilse Inconvenience to die grantor, Including Tfiut without
l)ntJtstToc};
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S.S.j jI\e tin e of entry {unless I fits Ts not poseIble due to an
Emergency
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S.5.2 Leaving gates as they are found,
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s.s.3 Driving 4n a safe manner and taking reasons Ne steps not to dIsturb
stay
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and
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5.5.q Avoiding access through eny speclflc areas y ithin t fie land
wklcT› have
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been Identified by tfie Grantor to I fie Grantee unless necessaty to
access
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but witl+out TlnJfTTng the lights of the Grantor to claim under clause 2.2
of tfiis
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Where entry Is effect ed by the Grandee due to an Emergency Sltualion the
Grantee
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sf+all as soon tI+ereafter as Is reasonable glue an Entry Notice to the
Grantor sucfi
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Entry Notlce (o 0e M terms of clause 5.Z aT tfiis fi›+1run+set.
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Br=acfi of respect]ye obtlgationz
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6.I
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If I fie Grantor wllfuTly or wTtfi y•lIfuI dlsregard causes or
pennTts any bleach of the
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obligations set out In this Easement lnslrumem. the Grantee shall be
enfltled to
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Marie elf reasonable steps to re+nedy the b+eacfi, with the dTrecj cosh of
remedying
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I he breach recoverable by tfie Grantee from the Grantor as a debt. Wfiere
the
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Grant ee considers k reasonable In the clrcumslances. prior to remedyir+g
the
brearG, Me Grantee will give notIce of tfie breach to II+e Grantor and show
tfie
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Granj or a reasonable perk›d to remedy tfie breach .
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6.2
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]I the Grantee wilfully or vYTth wI)fuI disregard causes or pemjlts any
breach of tfie
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obligations set out In this Easement Instrument, the Grantor sfiall be
entitled to
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I ake all reasor+able steps to remedy rlio hreacfi, with It+e direct rosts
of renJedylr+g
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the breach teroverab)e by the Gtantor from the Grant ee 4s a ‹4eGl,
projzided IF at In
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no cIrc+imstances shalf the grantor Interfere wltfi It+e Works In any
way
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whatsoever, WI\ere the Grant or considers It reesonable in II e
circumstances, prior
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to remedying fl e breacfi, the Grantor wit) gTw notl¢e of the breacfi
to 4he Grantee
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and allow lie Grantee a reasonable period to r eiredy tfie
breach.
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Health end safety
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7.1
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The Grantee will comply with all ob)ïgatIons impose‹4 on trie
Grannee at lave as trie person In charge of a p]ace o+ worf
and wJIl de
responsible for t fie healtlj end
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safety of any person trio colere on the tacd at Cf+e zeguesl of trie
Grantee.
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1.2
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In desigijlng a»d ConstnJcllng a»y Works, I ha Grantee will taTie
aJl practicable Steps
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to mitgcte any I+shards associe)ed w)tfi the Works U4at may harm persons on
tfie
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3hc Grantor wlII comply witfi all obllge\ioljs imposed on Erie Grantor et
law as
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owner of the Land relalIng to ttie heart h and safety of pe rsous or Ibe
turd.
7.4 The Gra ntee will comply with any reasonable obligations i+iposed by jhe Grantor regarding the Ident Iflcat ion and mitig ation of hazards and I he fieelt lj and sa(ety of persons ai› tfie facd.
The Work:s and Vefilcles or any other property of the Grantee will not, for any reason, become rt+e prof+erty at tfir Granroz and +vJh at a# limes remaJn the property of tfie Grantee, except in relation to any Works whfch the Grantee and flue G rantor fiave agreed are to f'ecome the property of the Grantor.
8.2 Erie Grao4 ee may transfer, assign, s 4b4et, lease or Ikence
all of its rigfits created by jfits basement Instrument provided If+a
I tfie
essigliee, sud¥'ssee, Iraruferee. Wsee or licensee is finencialTy so went
and has the fin ancia] resources to meet 4
he Grantee's rommij ments under tTTis
Ease »ent Instrument.
9.1 7f+ere b flo power In thIs Ees<ment
Instrument for the Granfor to tertr+inate any of
tlje Grantee’s +iehT s due to the Grantoe breaching any term of tfils
Easement instrument or for any reason, it l›eIng
the intention of tfie
parties that the rIgf+ts in rfiB Easement kislrumenI gift ront in+e forever
jJe)ess surrendered,
to. Indemnity
During I fie term of It+is Easement lust rument, tfie GraMee will indeilJnlfy
and keep indemnified ttje Grantor against all claims,
proceedings, ]osses, aame
es. costs or ojtier llablltiles of any oatote for which the Grantor may become
liable, caused @ ant act
or omissto ot the Grantee on ite hand ot on lend
adjoloJog tfie land, wtie ther petmltteb b2 this €ascure nt Instrument or
Koi, to Ihe e8teru thai the Grantor dia s not caused or cont rjbuted t o the
event and In t fie case of losses or demages, wfiere
such losses or damages
flare not been remedied by tI+e Grantee ur›der clause 2.1 or otherwise
compensated lot wnder the tetms
of this Casement Tnstrtimeot.
eollj parties
wlII at all tIi»es comply with at] statutes, bylaws, regulations and
legally binding codes of practice a nd otfier
lawful requirements relatlng to
this Easement Instruijjeijt, II e land and the Works whld place an obllgatlon on
the reNvant party
anr/ witfi a/} not Yes, ozders, ronrents, readfj+o»z or
requirements wf+tcfi may be va4dly gIYei1 or required by any competent
aufl'iorlty,
nlspute resolution
ft' any dfspu(e orTsez
6et«'een the Grand or and tfie Grantee concerning t)›e rTghu and
otillgajlons confalned y/ithIn
I his Casement Tnstr un\ent, tfie panles will
enter into negot Nations In good faith to resolve If+e d Ispute Ifiemselves oI
through
any lijlorrrial dbpute process Ikey agree ugon.
12.2 If tfie dispute b not resolved within t0”Working Da ys t) en any gany may at any 1)nie serve a mediallol› notice on the otheI pany requiring the dispute be referred to mediation. The medlntlon notlce sfia)I set Out the nature of the dispute. ltte parties shall in good faith endeavour to agree upon a mediator wTtfiln 5 Working Oays of t!ne date of service of the mediation notice. ]( like panies canngt agree on II\e mediator, the Fresldenj for the time belng of the t'Iew Zealand Law Society {or any successor oiganlsatlon) or the President's nominee wit] appoint an indcpendejjt medTotor, TI+e medtatoLs coTjs are to be borne equally §y the pertlrs.
If the dkpute Is not evolved within 20 Working Days of the date on y/hIch the metTiation notice is served. the parties n'JTT subn›ij to jhe orbljralTon of an Independent erbTtrator appoMted ]oIntIy by tf'e parties, If lfje panted cannot agree on the arbitrator within e further TO \NorkTng Days the President for the time being of the New Zealand law Socfe\y (or any suocenor organfsatfon} or the PrerTdent’r no+nInee well appoint ei1 )fidependent arbhrator.
j 2.4 Any arbitration proceedlngs wJTf be conducted In accordance wfTfi the Arbftratfori Act :t9S6 and the substantive law of Neyz Zealand.
bent rability
13.I
of competent jurisdiction to be jIIe8aI, void or unenforceable, sucfi determination shall not fmpelr the enTorceabillty of the remaIning pens of this Easement
This Eosement Inst ru tient sljall be construed Tn accordance wïlfi Net Zea]and law.
A waiver of eny pro•4sIo n of this Eacement Irts trument shall not be effective unless given Tn wrTttnz mad then It shell fie effective only to the extent It+a\ It Is expressly stated to be given.
A failure, dehy or Jndu)grnce by any gnMy )n exercb ing ony power o+ right swal] not operate as a waiver of that power or right. A single exercise or partial exercise of any power or right shsll not preclude further exercises of I hat power or right or tI\e exercise of any oTfier power or rtglTt.
In this Easement Instrument unless I I\e content requires otI+erwIse:
)s.z.z ”Construe“ ineanr to ba[td, conrlrucT, erect, Install or fry IM W 'rj . access trarks, roads. gates and/or fefices ‹ontempIatcd by tfilr Easement InslrumenI and Includes anything that is reesonab4y necessary to gfye fuIJ effect to thIs Easement Instrument iitc4ui:Ting re+tiovi g son and water from the Easement Aree subject alweys to the provisions of dause 2.7 of tlj]s Easement Instrument;
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t6.1,2 ’Easement Area” mea‹Js trial par\ of the land rfiown )n Sc)\edu)e A of this Easement Instrument;
"emergency Sjtuatjon" means, a shuation In which there is a probable danger to life or progeny or immediate risli: to the continu]jy or s afety of supply or distr‹buITon of electi4cily;
16.1.4 ’Entry Notlte" means the notice to be gfven pursue nt to c)au*e S.z of tFts Easement Inst+ument;
:I6.1.5 "Equipment” means cables, Ilnes, wires, cranes, drilling r@, Vehicles, p]anI, tools artd machinery and at] may erlal ar›d Items required for the purpose of exercising any of the rights under this Eacement Tnstrume nt;
"Land’ n eans trie Se+vient Tenement identTfled In scfiedule A of tfiis Eeseme ni Instrument;
“Temporary Perbd” or ’Temporary Per)ods“ itjeans such period or periods of II me as are reasonable Ic'r the soJe purpose or purposes of the grantee occupgng surh pan of parts of the Maud as It reguJres for ttje purposes set at In clauses :K2.) tfirougfi T.3.9 anrT as detailed In the
16.›.8 “Vehicles” means tout thee) drives, motorbikes, can and tnJcks, tractors, trailers, graders, pile Olivers, d+idling rlgs, cranes, fielTcoptors, aircraft, excav4 hon anfi eanhmovlng equlpment, whether wheeled or tteckea;
VorJ‹Jng Day’ means any day of If+e week other Iflan:
(a} Saturday, Sunday, Waitangi Day, Qood Friday, Easrer Mond@, Anzoc Day, tt+e Sovereign’s Birthday, NortHland Annt•ersary Oay and Labour Day; anrl
(b) A day In tfie period commencing gn tile 2a" day of fi+ecemher In any year and ending on the S" day of January In tfie following year, both days Inclusive.
”Works“ means electrical and telecommunications worM end ooMputer medja and Includes at) or any pan of any cables {Including fibre optlc cables], wires, eanhwlres, conductors, poles, Role structures, insulators, foundations, Tunnels, buildings, repeaters. pipes, hrJdges, ground stays, suppose, casings, devices, appliances, antennae, net ering devices and other apparatus, structues, fixtures and Equipment as are reasonably necessety to giye eWett to the Gentee’s nghts under this basement Inst tumenj to Install end operate an e)ectrTcity transmission network.
77. interpretation
t7.:t In tfils Easement Instrument, tJmess InconclsteM wltfi the comext:
17.:I.2 st far Includes plural and vice versa;
references to “perdons“ iicludes references to companées, corporations, parI»ersf+ips, joTnt ventures, associations, tnJsts, govetnmeoj dc gartn ents or agencJes and territorial local authosities;
references I n he Tractor and fira ntee Include their subsidiary or re lated conipafiles, lfl em pe rattled assigns and. where appropriate. iIt eir emplyees. coHractor s, surveyor s, invitees end inspectotsj
references to eny statute, regula jIon or other statutory Instrument or 6ylaw s flail be deenJerl to he references to the stab ute, regu)atJon or tn•Irumen1 or kyla+v as front lime to time amended and Includes substitution provlslons tfiat st+bstantIaIIy correspond to those to which refei'ence b ma Je;
T7.1.5 I fie fleadTngs and subs+ead)ngs appear as a matter of convenience and sFail not offect tfie Inrerpretatiol of I fits Easen›enj I+estrument.
- 30 -
SCHEDULE 4
(keep of Covenant uporj f rankle r ør ass)g nme nT or gran I of an III DIII I+4 I fie La ńd)
]"the Purchaser/ Mortgagee")
TOP ENERGY LIMITED
By an agreement to grant an easement and authorize the use of land for constructJoo o( electricity wotks deted ,. 20.., a copy gf wlik:Ji is ay feet+ed fierero (“Hue
Ag eement”), the Owner agreed to grant to Top Energy an easement In gross over the property described in I I+e Agreement and legally described as Computer ITegIsjer(s) UA. {“tfie fi+nd") and I o allow Top Energy to construct electriaty works on tlje
land.
The Owner has egreed to sell the land to the eur‹Faser/grab\I a mortgage over the hand In favout of the Mo+tgagee.
DEED 7 we panTes agree as follows: eurcT+as ePs covenant with Top Energy
(a) at all twJ es be bocnd fly ar+‹4 ›eifi ot›sezve and perform tfiose covenants, terms and conditions expressed or ]mpITed in the Agreement wT\icl\ are to be observed ond perTorn4ed 6y tfie Ow‹te r under the Ag*woenl;
{b) fulfil the Owner's oblgallot+s under the Agreement; and
(c) register a raveat In favovr of Top Energy st IT+e time II takes title to t\e land to record 7op £cergy’s merest In the land pursuant tg H+e Agreement, such c4yeat to be prepered end provided by Top Energy.
Mortgagee’s covenant with Top Energy
z,4 wind effect fron\
ltte day of 
Top Energy that the k)ortgagee'
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URL: http://www.nzlii.org/nz/cases/NZHC/2019/154.html
