Remarkable Wines Limited v Camp Creek Limited

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2015-425-000086 [2015] NZHC 2478

BETWEEN
REMARKABLE WINES LIMITED

Applicant

AND

CAMP CREEK LIMITED Respondent

Hearing: 9 October 2015 (By way of telephone conference)

Appearances:

G Stewart for Applicant
J Moss for Respondent

Judgment:

9 October 2015

JUDGMENT OF DUNNINGHAM J

[1] For the reasons set out in my minute of 7 October 2015, an urgent telephone conference was convened today to deal with the applicant’s application to sustain a caveat over the property of the respondent.

[2] Having received further affidavit evidence, and having heard from the parties, I am satisfied that the application to sustain the caveat should be declined.

[3] While time does not permit me to set out my reasons in full, it transpired during the course of the telephone conference that the applicant accepted the surveyor’s evidence that an easement to take and convey water was in place. The real concern was whether a subsequent purchaser, such as Ms Findlay, would accept the obligations which arose under the easement, and allow practical exercise of it. For example, there is a suggestion that the current owners have taken steps to divert the water away from the intake structure to prevent practical exercise of the
easement.

REMARKABLE WINES LIMITED v CAMP CREEK LIMITED [2015] NZHC 2478 [9 October 2015]

[4] However, as I explained to the parties, the Court cannot deal with the breach of the rights which arise under an existing easement, through proceedings to sustain a caveat for the equivalent purpose of the existing registered interest.

[5] Accordingly, the application to sustain the caveat 10149723.1 registered against ID 2742 Otago Land Registry, is declined and the caveat is to immediately lapse.

[6] A more detailed judgment setting out my reasons will follow in due course. [7] Costs are reserved.

Solicitors:
Stewart & Associates, Alexandra
Canterbury Legal Services, Christchurch

CaseChat Overview and Summary

The case of Remarkable Wines Limited v Camp Creek Limited was heard in the High Court of New Zealand at Invercargill. The applicant, Remarkable Wines Limited, sought to sustain a caveat over the property of the respondent, Camp Creek Limited. The primary issue before the court was whether the caveat should be sustained, given that the applicant had acknowledged the existence of an easement to take and convey water, but had concerns about its practical exercise by subsequent purchasers.

The court considered the applicant's acceptance of the surveyor's evidence confirming the easement. However, the court clarified that it could not address breaches of rights arising under an existing easement through proceedings to sustain a caveat. The court emphasised that it could not intervene in matters concerning the practical exercise of an easement by subsequent purchasers. Consequently, the court declined the application to sustain the caveat and ordered that it should immediately lapse.

In summary, the court ruled against the applicant's attempt to sustain the caveat, noting that the court's role was limited to matters directly related to the registration of interests. The caveat was to lapse immediately, and costs were reserved for a later determination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	9 October 2015 (By way of telephone conference)
Appearances:	G Stewart for Applicant J Moss for Respondent
Judgment:	9 October 2015