NEW ZEALAND GAZETTE, No. 97 — 21 SEPTEMBER 2017

omission or the consequence of any act of omission by either the Grantor or the Grantee must be carried
out promptly by that party at the sole cost of that party or in such proportion as relates to the act or
omission on the part of that party.

Right of Way Additional Terms

3. The following provisions shall also apply in respect of the Right of Way and to the extent they vary the Implied
   Terms, then the Implied Terms are further varied accordingly:

3.1 Maintenance: The following shall apply in relation to maintenance of the Right of Way and related
matters:

3.1.1 The Easement Area, insofar as it has the purpose of a right of way, shall be maintained to a standard
which is reasonably suitable in the opinion of the Grantor, having regard to the use of it by the parties.

3.1.2 The Grantor shall be responsible for arranging to have all maintenance work necessary to meet the
above standard (“Maintenance Work”) carried out as and when reasonably needed.

3.1.3 The parties shall, subject to the provision at the foot of this subclause 3.1.3, share all costs
associated with the Maintenance Work on such basis provided for in the Implied Terms. For the purposes
of this clause and the sharing of maintenance costs, a “reasonable contribution” as referred to in clause
2(c) of the Ninth Schedule of the Property Law Act 1952 shall (subject to clause 3.1.4 below) mean a
contribution that reasonably reflects the parties respective overall proportional use of the Right of Way.
The cost of formation if required however shall in any event be met by the Grantor.

3.1.4 Any remedial work required as a result of any damage (however caused) shall be paid for and carried
out as soon as reasonably possible following that damage. That remedial work shall be carried out as
follows:

a. By the Grantee if that damage is caused by the Grantee or anyone under its control; or

b. by the Grantor if that damage is caused by the Grantor or anyone under its control.

3.1.5 If any dispute arises under this provision then that dispute shall be referred to mediation in the first
instance in accordance with the mediation provisions set out in clause 4.

Mediation

4. The parties will first try to negotiate in good faith a speedy resolution of all disputes that arise between them in
   any way relating to any part of this instrument. If at any time either party (including any one or more persons
   comprising the Grantor) considers that a dispute has arisen that cannot be resolved then that party may by notice
   in writing require the matter to be referred to mediation of a mediator having those skills required (including
   relevant expertise and experience of the subject matter of the dispute) to bring the parties to a resolution
   (“Mediator”).

5. The Mediator shall be appointed by agreement of the parties (including any one or more persons comprising
   the Grantor) or, if the parties are unable to agree upon a Mediator within five working days of notification of the
   reference to mediation, the Mediator shall be appointed by the President of the Auckland District Law Society.
   Following appointment, the following terms shall apply:

5.1 The Mediator shall immediately, upon appointment, set down and advise the parties of the procedure to be
adopted in the mediation, which shall include an opportunity for each party to make written and oral
submissions to the Mediator;

5.2 the Mediator shall consider the submissions received from both parties (with or without expert reports)
and may consult with both parties either alone or together;

5.3 the Mediator shall use his or her best endeavours to obtain an agreement between the parties as to how
the dispute should be resolved provided that within 40 working days of reference of the dispute to mediation
the parties are unable to resolve the dispute the Mediator shall make a final written recommendation to the
parties as to how the dispute should be resolved;

5.4 the parties shall, within 15 working days form receipt by them of the final recommendation, advise each
other and the Mediator whether they accept that recommendation. The parties shall consider any final
recommendation in good faith; and

5.5 if the Mediator’s final recommendation is not accepted by both parties within 15 working days from receipt
by them of that recommendation then each party may pursue such other remedies or methods of resolution of
the dispute as may be available to it, including commencing proceeding in any court of competent jurisdiction
but excluding reference to the matter to arbitration unless the parties agree otherwise at the time.

6. All costs of mediation shall be, subject to any recommendation of the Mediator to the contrary, borne equally
   between the parties.

Public Access

62