29 SEPTEMBER 2005 NEW ZEALAND GAZETTE, No. 165 4149

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 resolution
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; and

(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

(c) consent to the enforcement, or execution, in any
court of competent jurisdiction in any country, of
any order or judgment which may be made by the
Courts of New Zealand.

9. Severability

9.1 If any part of the easement is held by any Court or
administrative body of competent jurisdiction to be
illegal, void or unenforceable, such determination shall
not impair the enforceability of the remaining parts of
the easement.

10. No Partnership

10.1 Nothing in the easement shall evidence or be deemed
to constitute a partnership between the parties.

11. No Waiver

11.1 A waiver of any provision of the easement shall not be
effective unless given in writing, and then it shall
be effective only to the extent it is expressly stated
to be given.

11.2 A failure, delay or indulgence by any party in
exercising any power or right shall not operate as a
waiver of that power or right. A single exercise of any
power or right shall not preclude further exercises of
that power or right or excuse from any other power or
right.

12. Force Majeure

12.1 Notwithstanding any other provision of the easement,
if either party shall fail to comply with or observe
any provision of the easement and such failure is
caused by an event which is outside the reasonable
control of that party, that failure shall not itself give
rise to any cause of action or liability based on breach
of that provision of the easement.