Hamish Fletcher

Business reporter for the NZ Herald

Hotchin Waiheke house caveat backed by court

Boat Shed Bay on Waiheke Island. Photo / Chris Skelton
Boat Shed Bay on Waiheke Island. Photo / Chris Skelton

A multi-million dollar Waiheke Island property with links to former Hanover Finance director Mark Hotchin still has a caveat over it following a ruling from the High Court.

This caveat relates to access rights claimed by a neighbour who wants to get through the property in order demolish their own home and build a new one.

The caveat was the subject of a High Court hearing earlier this month between the neighbour and a Hotchin-linked trust over whether the caveat should stay in place.

Olo Ltd - a company directed Steve Caspar and Jo Richmond - bought a 1100 square metre property on Waiheke's Matapana Rd in 2010 from KA No 4, a trust associated with Hotchin's family.

The site shares a border with a 4.5ha property owned by another Hotchin family trust, called KA No 3. This much larger property at 46a Matapana Rd extends down to Boatshed Bay. On it sits a five-bedroom home, a four-car garage, four boat sheds, a boat ramp, spa pool and tennis court.

The original sale and purchase agreement for 34 Matapana Rd contained a clause allowing the buyer access through the larger neighbouring property at 46a.

This access - extended for two years in April 2013 - was so the existing house on 34 Matapana could be demolished and a new one built.

The residents at 34 Matapana used 46a's 1km driveway and then went through part of the property to move their furniture into the existing house and Caspar believed the same access would be granted for the proposed building work.

See also: Hotchin house in Waiheke driveway dispute

Court access wanted in Hotchin Waiheke driveway case

Read the full decision here:

Olo Ltd's lawyer, Ben Russell, told the High Court earlier this month that the relationship between the parties became strained and in September or October last year the caretaker of 46a advised 34 they did not have access through the larger property.

"A vehicle was parked at the top of the driveway blocking the access and a gate was put up where a gate hadn't been in place before...it got to a point where access was blocked completely," Russell said.

Anticipating that 46a was going to be marketed for sale, Olo Ltd lodged a caveat over the neighbouring property and Russell applied to Justice Graham Lang for that caveat to be sustained to protect his client's interests.

See below for a map showing the two properties in question. The large house in the middle with the tennis court is owned by KA No 3. House number 34 Matapana Road is below, with a white roof:

The Queen's Counsel for KA No 3 Trustee, David Chisholm, said during the hearing that while there were contractual rights for access there was never an intention to create an easement.

These rights were personal between the parties and not tied to the land itself, Chisholm said.

"This present caveat cannot be sustained," he said.

Justice Lang, in his decision released yesterday afternoon, said the issue before him was whether or not the access rights constituted an "equitable easement capable of supporting Olo's caveat".

The judge concluded that the access rights under the terms of the sale and purchase agreement for 34 Matapana Road "arguably constitute an equitable easement sufficient to support a caveat".

Olo's application to sustain the caveat was therefore granted, albeit with some conditions.

"The order is conditional upon Olo issuing proceedings seeking specific performance of its rights...within one month from the date of delivery of this judgement. In the event that it does not do so, the caveat will lapse at that point," Justice Lang said.

Russell indicated earlier this month that his client wanted to get court orders so it can access the neighbouring land.

"We want to go to the court now to seek an order for the access rights under the agreement, independent of the question of whether or not there's a caveatable interest," Russell said.

Russell said his client would be seeking damages in the action and had earlier told court that being denied access had caused his client to incur additional building costs and that building work was put off until October this year.

- NZ Herald

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