Supreme Court upholds refusal to sustain caveat sought by community garden manager

On 30 May 2025, the High Court of New Zealand ruled in favour of the society’s application to sustain the caveat. New Zealand’s attorney-general, as the respondent in this case, appealed the High Court decision. 

Applying the settled principles of interpretation, the Court of Appeal of New Zealand determined that the construction of clause 25.4 was clear and that additional discovery was unnecessary. In its 19 December 2025 decision, the appeal court observed that: 

• Consulting with the parties, which did not include the society, was part of the process of agreeing and documenting an arrangement for the gardens’ ongoing use and preservation 
• The consultation sought to secure an agreement on the gardens’ preservation 
• As of the date of clause 25.4, the parties had yet to realise that objective 
• An agreement to consult or to agree would be unnecessary if the parties had already arrived at an agreement 

Before the Supreme Court, the society sought leave to appeal against the appeal court ruling. In its proposed appeal, the society stressed the gardens’ historical and cultural importance and the negative impact of removing the caveat. The society alleged that: 

• The High Court correctly found that it had a reasonably arguable case 
• Clause 25.4(a) reflected that the parties were agreeing to consultation, as well as agreeing and documenting arrangements for the gardens’ use, not their preservation 
• There was already an agreement governing the gardens’ preservation. 

Leave denied

In declining leave, the Supreme Court of New Zealand described the Court of Appeal’s approach as consistent with the commercial context. The Supreme Court ruled that the society’s arguments in its proposed appeal: 

• reprised matters the appeal court had addressed 
• did not challenge the principles applied by the appeal court in connection with contractual interpretation or applications to sustain a caveat 
• involved applying those principles to a bespoke clause in a variation to a specific agreement 

The Supreme Court acknowledged that clause 25.4(a) expressed the hope that the gardens would continue. However, the Supreme Court pointed out that the clause did not address where or under whose ownership, perhaps intentionally given the nature of the group to be consulted. 

Even if the gardens were preserved, the Supreme Court found no apparent assumption that the society would maintain its present role. Regarding an interest sustaining a caveat, the Supreme Court saw no language in clause 25.4(a) that constituted an interest in land or a grant. 

The Supreme Court also saw: 

• insufficient prospects of success in the proposed appeal 
• no questions of general or public importance or of commercial significance 
• no apparent miscarriage of justice in the civil context 

The Supreme Court did not order costs.