week eight

Question 1

what was being argued in Potts v Anderson

Answer 1

who can pump what water

Question 2

the andersons transferred their property into a family trust and potts wasn’t informed. what did the andersons try to say to get out of their pumping agreement where the andersons came on to the property to use it?

Answer 2

they said they didnt make the agreements, the andersons did, so they don’t need to recognise it and told the potts they could no longer come pump water

Question 3

were the anderson family trust successful in not recognising the water pumping claim

Answer 3

no, the in personam claim was established

Question 4

what were the two causes of action in Potts v Anderson and did they succeed?

Answer 4

1. damages for breach of contract - yes

2. was there a fresh easement when the Andersons transferred land into the family trust - fail

Question 5

what was the argument over in Halliday v Bank of New Zealand

Answer 5

trees

Question 6

what was the original issue in Halliday v Bank of New Zealand

Answer 6

Halliday and the Thompsons made an agreement about the trees when the Hallidays sold them their land - a forestry agreement. The trees were not to be included in the sale.

The Hallidays would be able to care for their trees on the property and cut and sell them when it came time.

BNZ didn’t want to recognise this agreement, they said they are not bound as it is too late so they will exercise their right of sale

Question 7

were the Hallidays successful in Halliday v BNZ and why

Answer 7

they successfully argued the in personam claim - it was unconscionable for the bank to deny them the agreement and the cause of action was estoppel

Question 8

the court said the Hallidays have an equitable right to take, what is this also called

Answer 8

an equitable profit a prendre - they have a right to go onto the land to cut the timber and use it for their use. this is binding on BNZ

Question 9

the hallidays had a caveat lodged, but mere knowledge of an unregistered interest?

Answer 9

does not equate to fraud

Question 10

The Hallidays had acted in reliance of the common understanding between them, the purchasers and the bank that they owned the trees. What argument did this cause

Answer 10

the estoppel argument

Question 11

did the Hallidays succeed in Halliday v BNZ

Answer 11

yes, the court said it is the in personam claim and BNZ had to recognise that claim

Question 12

what is supervening fraud and is it currently in legislation

Answer 12

fraud after registration - written out of the LTA 2017

Question 13

what did Sutton v O’Kane concern

Answer 13

an equitable right of way unregistered. Front house put a concrete barrier up to stop the right of way. This wasn’t dishonestly intending to cheat because he had checked his title and there was nothing on it so he could keep his wall up.

this mentioned supervening fraud but that doesn’t exist anymore

Question 14

“Land of the vendor” was not confined to Mr Potts, why?

Answer 14

it included land he had the power to lease, so long as it was land that was in his possession at the time of the contract

Question 15

did the Andersons’ actions breach the easement in Potts v Anderson

Answer 15

yes

Question 16

did the defence founded on indefeasibility in Potts v Anderson succeed?

Answer 16

no

Question 17

define when estoppel applies?

Answer 17

estoppel applies where one party has by words or conduct made to the other a clear and unequivocal or unambiguous promise or assurance intended to affect the relations between them and to be acted on accordingly. Once the other party has taken him at his word and acted on it, the one who gave the promise or assurance is bound by that assurance unless and until he has given the promisee a reasonable opportunity of resuming his position.

Question 18

did the claim based on estoppel succeed in Potts v Anderson

Answer 18

no

Question 19

what case is when an in personam claim would not arise?

Answer 19

nathan v dollars and sense

Question 20

who were the Thomsons’ mortgagees throughout their time as owners of the ex-Halliday owned property

Answer 20

RCL (Halliday’s trust - Halliday trustees also maybe, unclear), their own parents and to BNZ

Question 21

what happened over time to the BNZ’s interest/mortgage in the Thomson’s property

Answer 21

they allowed them an overdraft, eventually wanted a mortgage so was added as the third mortgagee. they did a variation of mortgage to become second mortgage (Thomson’s parents had to agree to be slid down the chain), finally they paid off the Halliday’s and became top of the chain and then executed their power to sell

Question 22

where do the three aspects for the in personam claim come from?

Answer 22

Regal Castings v Lightbody

Question 23

once served and removed, the judge said Halliday’s trees would be?

Answer 23

chattels (moveable goods)

Question 24

who are you attacking under the in personam claim, who has to be unconscionable

Answer 24

the current registered owner

Question 25

what are the exceptions to s51 of the LTA 2017

Answer 25

• s 6 in the case of fraud
• a registered interest registered or noted at time of registration
• prior record of title
• wrong description of area of boundaries
• omission or misdescription of easement
• manifest injustice ss54-56
• mortgagee against mortgagor in default
• lessor against lessee indefault

Question 26

what is the ss 261-264 Property Law Act 2007 “relief against refusal to grant a renewal of lease” about

Answer 26

relief may be given against a lessor’s refusal to enter into a renewal or sell a reversion to a lessee

Question 27

what is the ss 319-320 Property Law Act 2007 “entry onto neighouring land”

Answer 27

owner or occupier of land can apply to court for order authorising entry onto or over neighbouring land

Question 28

what happened in De Richaumont Investments Co Ltd v OTW regarding entering Land

Answer 28

OTW wanted to enter De Richaumont’s land to paint an advertisement on a wall they leased. The DC said sure but in this appeal they weren’t allowed to cross the carpark because this is a commercial bill board and this is about a neighbourly problem to paint your house.

this may now be different under the Property Law Act 2007 s 319-320 because of the language, which potentially makes it go slightly beyond a neighbourhood dispute