Aorangi Forests Limited v Vegar-Fitzgerald

[2013] NZHC 3515

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004198 [2013] NZHC 3515

BETWEEN  AORANGI FORESTS LIMITED Applicant

ANDPATRICIA ANNE VEGAR- FITZGERALD

Respondent

Hearing:                   19 December 2013

Appearances:           B J Burt for applicant

P H Lowndes for respondent

Judgment:                19 December 2013

(ORAL) JUDGMENT OF LANG J

[on application for interim relief pending appeal to Court of Appeal]

AORANGI FORESTS LIMITED v PATRICIA ANNE VEGAR-FITZGERALD [2013] NZHC 3515 [19

December 2013]

[1]      In this proceeding Aorangi Forests Limited (“Aorangi”) sought an order removing a caveat lodged by Ms Patricia Vegar-Fitzgerald against the title to a forest property over which Aorangi holds a registered mortgage.   Ms Vegar-Fitzgerald lodged the caveat to protect her interest as purchaser under an agreement for sale and purchase that she has entered into with the owner of the property, Vegar Properties Limited.

[2]      Aorangi wants the caveat removed so that it can complete an agreement for the sale of the property to a third party.   Aorangi has entered into that agreement using the powers vested in it under the mortgage.

[3]      On  16  December  2013,  Ellis  J  issued  a  judgment  in  which  she  granted Aorangi’s application.1   In doing so, the Judge rejected a submission for Ms Vegar- Fitzgerald that Aorangi and the Bank of New Zealand (“BNZ”) as mortgagees in respect of the property had consented to the sale to Ms Vegar-Fitzgerald.

[4]      Ms Vegar-Fitzgerald wishes to appeal to the Court of Appeal against the Judge’s decision.   She will argue that the Judge reached factual conclusions that were not open to her in the context of a summary proceeding such as that relating to the removal of a caveat.

[5]      Ms Vegar-Fitzgerald now seeks interim relief under r 12(3)(b) of the Court of Appeal (Civil Appeals) Rules 2005.2   She seeks interim relief in the form of an order directing the Registrar-General not to remove the caveat until such time as her appeal has been heard and determined.

[6]      The application for interim relief has come before me as a matter of urgency, because the order made by Ellis J has now been sealed and forwarded to the Registrar-General with a request that the caveat be removed.   I have heard the

application in circumstances where no notice of appeal to the Court of Appeal has

1      Aorangi Forests Ltd v Vegar-Fitzgerald [2013] NZHC 3370.

2      The application wrongly relied upon r  20.10 of the High Court Rules 2008, but this was amended during the hearing so as to rely upon r 12(3)(b) of the Court of Appeal (Civil Appeals) Rules 2005.

yet been filed.   I therefore do not have the benefit of being able to consider the grounds of appeal as would normally be the case.

[7]      Having  read  the  judgment  of  Ellis  J,  I  consider  there  is  force  in  the submission for Aorangi that, as a matter of fact, the Judge was correct to conclude that neither Aorangi nor BNZ consented to the sale of the property to Ms Vegar- Fitzgerald.    I am  conscious,  however, that  removal  of the caveat  will  result  in Aorangi being able to complete the sale of the property within a very short period. That  agreement  is  apparently  conditional  only  on  Ms  Vegar-Fitzgerald’s  caveat being removed from the title.  Thereafter settlement will take place within 21 days. If that should happen, Ms Vegar-Fitzgerald’s rights of appeal would obviously be rendered nugatory.

[8]      Aorangi’s  agreement  contains  a  “sunset  clause”  that  effectively  gives Aorangi until 30 June 2014 to obtain an order removing Ms Vegar-Fitzgerald’s caveat.    For  that  reason  Aorangi  will  not  be  unduly  prejudiced  if  Ms  Vegar- Fitzgerald is given a short period within which to file her appeal documents and to persuade the Court of Appeal that it should extend the interim relief I propose to grant.

[9]      I therefore make an order granting Ms Vegar-Fitzgerald interim relief under r 12(3)(b) of the Court of Appeal (Civil Appeals) Rules 2005.   I direct that the Registrar-General is not to remove the caveat from the title of the property until 14

February 2014 or such later date as may be nominated by the Court of Appeal.

[10]     I record that  I have granted interim relief on  the understanding that  Ms Vegar-Fitzgerald will forthwith file her appeal in the Court of Appeal.  She will also file an application for a priority fixture in the Court of Appeal, together with an application for an order extending the interim relief I have granted until the appeal has been determined.  Those applications will obviously need to be filed in sufficient time to enable the Court of Appeal to consider them in a Miscellaneous Motions List

in early February 2014.

Lang J

Solicitors:

Chapman Tripp, Auckland
Counsel:
P H Lowndes, Auckland