Amos v Star Catchers Limited - [2012] NZHC 1140

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-2568 [2012] NZHC 1140

BETWEEN ANTHONY MARK AMOS Applicant

ANDSTAR CATCHERS LIMITED Respondent

Hearing: 27 April 2012
(Heard at Wellington)

Counsel: JW Howell - Counsel for Applicant
PSJ Withnall - Counsel for Respondent

Judgment: 25 May 2012

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

This judgment of Associate Judge Gendall was delivered by the Registrar on 25 May
2012 at 4.00 pm under r 11.5 of the High Court Rules.

Solicitors: Thomas Dewar, Solicitors, PO Box 31-240, Lower Hutt
Devine Law Limited, Solicitors, PO Box 5970, Wellington

AM AMOS V STAR CATCHERS LIMITED HC WN CIV-2011-485-2568 [25 May 2012]

Introduction

[1] On 4 July 2011 the applicant registered caveat No. 8807541.1 against the title to a large residential subdivision property at Lot 28 Antrim Crescent, Wainuiomata (the property) owned by the respondent. In November 2011, the respondent applied to the Registrar General of Land to lapse the caveat under s 145A of the Land Transfer Act 1952. In the application before me, the applicant now seeks an order that the caveat not lapse.

[2] This matter came on for hearing before me on 27 April 2012. After hearing counsel for both parties, I decided to reserve my decision for two weeks under all the circumstances prevailing here, to encourage the parties to negotiate matters in an endeavour to reach some appropriate settlement. In doing so, I suggested two possible options for settlement: first, by the applicant buying back the property in question at the original agreed sale price less an amount being two-elevenths of that price, or secondly, by the property being sold to a third party and the parties dividing the proceeds of sale according to a Property Sharing Agreement they earlier entered into, details of which I outline below. Neither of these options it seems were acceptable to the parties. No agreement was reached during the fortnight following the hearing. The application therefore falls to be determined by this Court and I now give my decision.

Background

[3] The applicant, Anthony Mark Amos was a principal shareholder in and director of a company, Sunnyview Wainui Limited, which initially owned the property as part of a larger block of land held for the purposes of a residential subdivision venture. Sunnyview Wainui Limited encountered financial difficulties and was forced to reduce some of its debt to its bank by selling some of its land interests. On or about 21 October 2009 Sunnyview Wainui Limited as vendor entered into an agreement to sell the property to a named purchaser, Robert Ian Price (Mr Price) or his nominee, at a price of $210,000.00 (the sale agreement). Subsequently, Mr Price nominated the respondent Star Catchers Limited (a company in which he held a 50% shareholding and was a director) into the sale agreement as

purchaser. Then, on or about 10 August 2010, the respondent completed settlement of the purchase by paying the balance of the $210,000.00 purchase price to the vendor and title to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 1140
Decision Date: 25 May 2012

CaseChat Overview and Summary

Amos v Star Catchers Limited involved a dispute over a caveat registered against a property in Wainuiomata. Anthony Mark Amos, a principal shareholder and director of Sunnyview Wainui Limited, had registered the caveat to protect his interest in two sections of the property, following an agreement to sell the property to Star Catchers Limited. The primary legal issue was whether the caveat should be removed under s 145A of the Land Transfer Act 1952. The court had to determine if the applicant had a reasonably arguable case for the interest he claimed and whether the caveat could be removed under the court's residual discretion.

The court found that while the applicant had a recognisable interest in the property, protected by the caveat, the exercise of the court's residual discretion should result in the caveat's removal. The court reasoned that the applicant did not have a reasonable expectation of obtaining specific performance of the Property Sharing Agreement, as the subdivision was not commercially viable. Furthermore, the applicant's interest could be accommodated by receiving a two-eleventh share of the sale proceeds. Therefore, the court exercised its discretion to order the removal of the caveat, subject to certain conditions, including that the respondent sell the property and pay the applicant his share of the sale proceeds. The court also reserved the right for either party to apply for further directions or assistance.

Orders