4 NOVEMBER 2004

NEW ZEALAND GAZETTE, No. 143

3595

(c) If the structures and/or the wall of the building
do not comply with all relevant statutes, regulations
or consents, the grantee will put the same into
the condition required to make them comply with the
relevant statutes, regulations or consents immediately
upon the non-compliance being made known to the
grantee.

(d) If the grantee defaults in any of its obligations to
maintain or repair under clause 3.1 (c), the grantor
may arrange for such repair or maintenance at the
cost of the grantee and the grantee shall immediately
reimburse the grantor for such expense, but without
prejudice to the grantor’s other rights and remedies
under the easement.

(e) The grantor shall at all times during this easement
ensure that an adequate security fence and gate is
installed along the Hutt Road boundary between the
building and the MSE and keep the same in good
repair. The grantor shall make available to the
grantee keys to the security gate to allow the grantee
reasonable access pursuant to clause 2.1 (b).

(f) Nothing in this easement shall prevent the grantor
from making excavations of the servient land or the
adjoining road for the purpose of laying foundations
for any roading structure or other building, and
the grantor may in future do all such things on the
servient land or the adjoining road as the grantor
shall see fit at its sole discretion (which actions
might but for this proviso be a derogation from the
grantor’s own grant) provided that in so doing
the grantor shall provide sufficient artificial means
of support to the building on the dominant land both
during the progress of and after the completion of
any such work on the servient land or the adjoining
road.

4. Agreement to Subsist

4.1 No power is implied in respect of the easement or any
right or obligation under it for the grantor to determine
the easement or any right or obligation set out in this
easement, it being the intention that the easement and all
rights and obligations shall subsist for the term (subject
to early termination under clause 2.4) unless surrendered
by the grantee or modified or terminated by the mutual
written agreement of the grantor and the grantee.

5. Statutory Rights Implied

5.1 The rights and powers implied by the Fourth Schedule to
the Land Transfer Regulations 2002 shall be deemed
incorporated and form part of the easement but where
any conflict arises, the terms of the easement shall
prevail.

5.2 Nothing in the easement shall override any statutory and
regulatory provisions relating to the servient land. The
grantee shall, in taking entry under the easement and in
completing any works on the servient land, comply with
any such statutory requirements, including without
limitation obtaining the consent of the grantor prior to
completing any works that affect the surface of the
servient land, or that may produce subsidence affecting
the servient land.

6. Disputes

6.1 The parties acknowledge their desire that all questions
or differences whatsoever which arise between the
parties concerning the easement or its subject matter or
arising out of or in relation thereto and whether as to
interpretation or otherwise be resolved amicably by bona
fide discussion between them.

6.2 If any question or difference (the "dispute") is not
resolved by written agreement between the parties within
20 business days of one party giving notice to the other
of a proposal for resolution of the dispute, the dispute
shall be referred to mediation in accordance with clause
6.3.

6.3 Each party agrees not to commence any legal
proceedings relating to the dispute unless it has complied
with the following:

(a) On notice (the "notice") by one party to the other
party of the failure of formal discussions between
the parties in respect of the dispute, and its decision
to apply for mediation, the parties shall endeavour
in good faith to resolve the dispute expeditiously
using informal dispute resolutions techniques such
as mediation, expert evaluation or determination or
similar techniques agreed by them.

(b) If the parties do not agree within 10 business days of
receipt of the notice (or such further period as agreed
in writing by them) as to:

(i) the dispute resolution technique and procedures
to be adopted;

(ii) the timetable for all steps in those procedures;

(iii) the selection and compensation of the
independent person required for such
techniques;
the parties shall mediate the dispute in accordance
with the mediation rules of the New Zealand
Chapter of Lawyers Engaged in Alternative Dispute
Resolution ("LEADR") and the executive chair
of LEADR or the executive chair’s nominee will
select the mediator and determine the mediator’s
remuneration.

(c) Where the dispute is not resolved by mediation in
accordance with this clause 6.3, then either party may
take such other action, as it considers appropriate,
including commencing legal proceedings;

(d) Pending resolution of the dispute, the parties shall
continue to perform their respective obligations
pursuant to the provisions of the easement.

7. Notices

7.1 Without prejudice to any other procedures for the giving
of notice at law, all notices and other communications
required or permitted under the easement shall be in
writing and shall be delivered personally or sent by
prepaid post or by facsimile transmission to such address
notified for this purpose.

7.2 A notice or other communication delivered by hand shall
be deemed to have been received at the time of delivery.
However, if the delivery is not made on a business day
or is made after 5.00 p.m. on a business day, then the
notice or other communication will be deemed to have
been received on the next business day.

7.3 A notice or other communication delivered by prepaid
post shall be deemed to have been received on the third
business day after posting.

7.4 A notice or other communication sent by facsimile shall
be deemed to have been received on the date of
transmission. However, if the date of transmission is
not a business day or the transmission is sent after
5.00 p.m. on a business day, then the notice or other
communication will be deemed to have been received on
the next business day after the date of transmission.

8. Governing Law

8.1 The easement is governed by, and shall be construed in
accordance with, the laws of New Zealand. The parties
to the easement agree to:

(a) submit to exclusive jurisdiction of the Courts of
New Zealand;

(b) waive any immunity they may have to the
New Zealand Courts jurisdiction; and