ASB Bank Limited v Lambert

[2013] NZHC 947

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2013-419-000204 [2013] NZHC 947

UNDER  s 143 Land Transfer Act 1952

IN THE MATTER OF     an application to remove Caveats numbered

9281228.1 & 9290817.1

BETWEEN  ASB BANK LIMITED Applicant

ANDELIZABETH MARY LAMBERT AS TRUSTEE OF THE ELIZABETH MARY LAMBERT TRUST

Respondent

Hearing:         1 May 2013

(Heard at Hamilton)

Appearances: M J Maday for Applicant

E M Lambert (Respondent) in person

Judgment:      1 May 2013

JUDGMENT OF ASSOCIATE JUDGE OSBORNE [as to removal of caveats]

Introduction

[1]      ASB Bank  Ltd,  a mortgagee  with  first-ranking  priority has  exercised  its power of sale over three Kerikeri properties.  It sold the properties at auction on 30

November 2012.  Settlement should have occurred on 13 January 2013.  It could not. The  respondent,  Elizabeth  Mary  Lambert,  a  bankrupt,  lodged  caveats  against dealings on each title in December 2012, with registration occurring in January

2013.

ASB BANK LIMITED V LAMBERT HC HAM CIV-2013-419-000204 [1 May 2013]

[2]      ASB applies for orders that each caveat be removed.  It invokes the Court’s jurisdiction under s 143 Land Transfer Act 1952.  It also seeks an award of costs and disbursements on an indemnity basis pursuant to r 14.6(4) High Court Rules.

[3]      Ms Lambert opposes the application.   She says that she, as trustee of her family trust, purchased from herself personally.  She says that she personally had in turn purchased the property from the registered proprietors (the mortgagors to ASB). She asserts “a valid caveatable interest”.

Ms Lambert’s $10 purchase

[4]      The only grounds advanced by Ms Lambert in her notice of opposition are those  relating  to  a  valid  caveatable  interest  in  the  Kerikeri  properties  acquired through two sets of transactions (the first, as between the registered proprietors and Ms Lambert personally; the second as between Ms Lambert personally and herself as trustee of her family trust).

[5]      I will deal with her opposition in terms of the grounds advanced in her notice of opposition.  I will refer to submissions which Ms Lambert also developed as to the entitlement of ASB as mortgagee but will deal with those submissions only briefly as they are not properly before the Court as grounds of opposition.   The central issue on this application therefore is whether the interests which Ms Lambert claims are arguable and, if so, how they ought to be approached in the light of ASB’s rights as mortgagee.  That involves also some consideration of the interests of third parties who purchased the properties at auction in November 2012.

[6]      Ms Lambert filed an affidavit in opposition.  As it is brief and to the point, I

set out in full what she deposed.

1.That I am the respondent opposing an application made by ASB BANK  LIMITED  that  my  caveats  numbered  982122.1  [sic]  and

9290817.1 be removed.

2.On 11 December 2012, as Trustee of the Elizabeth Mary Lambert Trust [the Trust] I purchased the properties to which these caveats relate from Elizabeth Mary Lambert in her private capacity as purchaser from the registered proprietors.   A copy of the sale and purchase agreements are attached and marked ‘A’ and ‘B’.

3.        Both sale and purchase agreements are subject to leases in favour of

John and Bernadette Anne Carney and family.

4.        On 24 December 2012 I lodged caveat number 9281228.1 to protect

the Trust’s interest in the lease of the property to the Carney family.

5.On 21 January 2013 I lodged caveat number 9290817.1 to protect the Trust’s interest in the leases of these properties to the Carney family.

[7]      As the affidavit indicates, there are but two exhibits.  They were copies of agreements for sale and purchase of each set of the Kerikeri properties, dated 11

December 2012.  Details of the agreements are as follows:

Vendor: Elizabeth Mary Lambert

Purchaser: Elizabeth Mary Lambert Trust

Purchase price: $10.00

Possession: 11 December 2012

Tenancies: John and Anne Carney and family [the registered proprietors]

pursuant to a lease with a term of 65 years

Sale  effected  by:  “Private  treaty  of  peaceful  occupation  pursuant  to

Articles 1 and 3 of the Treaty of Waitangi 1840”

General terms of sale: There were none as the reference to “General

Terms of Sale” in the standard form ADLS REINZ has been deleted.

[8]      Where Ms Lambert in her affidavit had said she personally purchased the properties  from  the  registered  proprietors,  she  was  referring  to  two  earlier agreements for sale and purchase.  They were exhibited by Nicolette Maddren, the ASB credit controller who swore the affidavit in support of the application.  Those agreements  are  dated  7  December  2011  and  were  as  between  the  registered proprietors as vendor and Ms Lambert as purchaser.  Details of the agreements were as follows:

Purchase price: $1

Possession date: 7 December 2011

Tenancies:  Registered proprietors at $60 rent per week

Further  terms  of sale: Vendor retains  the Certificate  of Title and  the vendor and purchaser agree that the vendor will have the right to buy

back the possessory rights at any time for $1.

For 12 and 18 Kingfisher Drive

Purchase price: $1

Possession date: 7 December 2011

Tenancies:     Eilish  Carney  -  lease  with  a  notation  “see  attached document”, but with no attached document

Further terms of sale: Vendor retains the Certificate of Title.  Vendor and purchaser  agree  that  the  vendor  will  have  the  right  to  buy back  the

possessory rights at any time for $1.

Disposal of the 7 December 2011 agreements

[9]      Ms Maddren has given evidence as to the disposal of the 7 December 2011 agreements.  Her evidence was not responded to by Ms Lambert in this regard.   I accept it.

[10]     On 17 January 2012, Ms Lambert lodged caveats against dealings on the titles of the Kerikeri properties, claiming a beneficial interest in those properties pursuant to the 7 December 2011 agreements.

[12]     Ms Lambert’s estate therefore passed to the Official Assignee in bankruptcy on 28 May 2012.   ASB’s solicitors took steps through correspondence with the Official Assignee  to  obtain  the  removal  of  the  January  2012  caveats.    Shortly afterwards, the registered proprietors forwarded copies of the December 2011 agreements to ASB’s lawyers.   The lawyers responded that discharges of ASB’s mortgage would not be provided and that ASB was proceeding with the sales of the properties at auction.  By 5 November 2012, ASB’s solicitors had obtained from the Official Assignee her agreement to remove the January caveats.

[13]     Accordingly, the ability of ASB to settle the subsequent auction sales is not compromised by the January 2012 caveats as the Assignee will be executing the necessary documents for their removal at the time of settlement.

Ms Lambert’s previous purchases of other properties

[14]     The purchases of the Kerikeri properties are not the first transactions with such  peculiar  aspects  which  Ms  Lambert  has  entered  into.    There  have  been produced a number of judgments of the Court, the factual record of which I take

judicial notice of.  I do not know whether the following list is comprehensive.

2 December 2011 - FM Custodians Ltd v Stewart Street Properties Ltd (in Rec).1    In this case, Associate Judge Faire made an order that a caveat lodged by Ms Lambert should lapse.   The successful applicant was a mortgagee  proceeding  to  mortgagee  sale.    Ms  Lambert  claimed  an

interest from the registered proprietor pursuant to a sale and purchase agreement entered into with the registered proprietor.   Associate Judge Faire applied the legal principle that the registered proprietor’s interest in the land ended with the transfer by the mortgagee to the mortgagee’s purchaser, so that from that time nothing would support a caveat.   His

Honour found therefore that the appropriate exercise of jurisdiction under

1      FM Custodians Ltd v Stewart Street Properties Ltd (in Rec) HC Auckland CIV-2011-404-7181, 2

December 2011.

s  143  of  the  Land  Transfer Act  1952  was  to  make  an  order  which provided for the lapsing of the caveat and its removal from the title upon registration of a transfer by the mortgagee and the mortgagee’s purchaser

pursuant to the power of sale.2

9 January 2012  - Plateau Farms Ltd (in Rec and in Liq) v Lambert.3   In this case, concerning the realisation of the assets of the Crafar family, the receivers had been prevented from completing a sale of the property by caveats lodged by Ms Lambert against the titles.  Lang J summarised Ms Lambert’s caveats:4

In the caveats she describes her interest in the properties as that of purchaser under various agreements for sale and purchase dated 27

August 2011. The salient features of the agreements are that she has

agreed to purchase each of the properties for the sum of $1. Each property following purchase will then be leased to the Crafar family. I take it she intends, following settlement, to allow the Crafars to return to the farms and continue farming them.

Lang J noted that to successfully resist the receivers’ application for the caveats to lapse, Ms Lambert would have to show that she arguably had a legal  or equitable interest  in  the land which  took  priority over other competing  interests.    As  the  relevant  mortgages  had  been  registered before the caveats, and the farms in fact were sold pursuant to the powers of sale contained in the mortgages, Ms Lambert could not establish that she  had  a  caveatable  interest  which  took  priority  over  the  equitable interest  held  by  the  purchasers  under  the  agreements  for  sale  and purchase which they had entered into.  The Court ordered the caveats to

be removed with immediate effect.

4 May 2012 - Rabobank New Zealand Ltd v Lambert.5     In this case determined some six months after the FM Custodians case, Associate Judge Faire again ordered that a caveat lodged by Ms Lambert should

lapse.  Ms Lambert had claimed an estate or interest pursuant to a sale

2 At [16].

3      Plateau Farms Ltd (in Rec and in Liq) v Lambert [2012] NZHC 109.

4 At [3].

5      Rabobank New Zealand Ltd v Lambert [2012] NZHC 908.

and purchase agreement from the registered proprietor.   The successful applicant, a mortgagee whose mortgage had been registered before the caveat, was pursuing its power of sale. Associate Judge Faire applied the

same principles as in FM Custodians.

9 May 2012 - Rabobank New Zealand Ltd v Busch.6    In this case, the Court dealt with a sequel to the proceeding in Rabobank New Zealand Ltd v Lambert,7 in which Associate Judge Faire had made an order for the removal of Ms Lambert’s caveat.   In early May 2012, Ms Busch had lodged a further caveat against dealings on the same titles.   Ms Busch explained the basis on which she derived an interest from Country Developments Ltd, the registered proprietor.   Associate Judge Bell’s judgment records:8

…She said that Country Developments Ltd had entered into an agreement for sale and purchase of the properties on 21 January

2012. Ms Lambert was the purchaser. The purchase price was $1.00. Ms Lambert, in turn, granted a lease of the property to Country

Developments Ltd for 99 years. Country Developments Ltd, in turn, granted a sub-lease of the property to Ms Busch for 95 years. The sub-lease was for the entire property.

Associate Judge Bell adopted the reasoning of Associate Judge Faire in

Rabobank  New  Zealand  Ltd  v  Lambert.    He  ordered  removal  of  the caveats.

29 November 2012 - Watson v Williams.9     In this case, a bank had sold a property to the plaintiffs pursuant to the bank’s rights as mortgagee.  The defendants were the registered proprietors of the property.   Associate Judge Faire recorded their defence in this way:10

The  defendants  claim  that  on  14  February  2012  they  sold  the property  to  Ms  Elizabeth  Lambert.  The  full  sale  and  purchase contract has not been produced. The parts that have been placed as copies of that agreement before the Court disclose the following:

6      Rabobank New Zealand Ltd v Busch [2012] NZHC 1547.

7 See immediately above at [14].

8      Rabobank New Zealand Ltd v Busch, above n 6, at [10].

9      Watson v Williams [2012] NZHC 3199.

10 At [16].

(a)       The purchase price is specified as $1;

(b)       Possession was required to be given on 14 February 2012;

(c)       The agreement heading “Tenancies” refers to the Williams

Family Trust 99 year lease.

Associate Judge Faire, applying the same principles as those applied in previous cases, determined that the plaintiffs were the parties entitled to possession.11    His Honour also found that the plaintiffs were entitled to damages in relation to the period in which they were kept out of occupation.12

Associate Judge Faire declined to award indemnity costs against the defendants.  He did so partly because of Ms Lambert’s role.  His Honour observed:13

It is unfortunate for the defendants that they have accepted advice from a person who has attempted to run schemes to defeat the position   of   mortgagees   or   persons   who   acquire   title   from mortgagees. The cost that has been incurred to challenge these schemes should, in reality, be visited against Ms Lambert. There is no point in doing that, however, in view of her bankruptcy.

Associate Judge Faire’s comments echo those of Associate Judge Bell in

Rabobank New Zealand Ltd v Busch in which his Honour had observed:14

She [Ms Lambert] has been involved in a number of cases where she has needlessly lodged caveats, with the effect that secured creditors have been impeded in realising their securities…

4 July 2012 - Waterhouse v Westpac New Zealand Ltd.15    In this case, Associate  Judge  Bell  dismissed  an  application  under  s  145A  Land Transfer Act 1952 for an order sustaining a caveat.  The respondent bank had taken and registered a mortgage over a property.  When the registered proprietors  defaulted,  the  bank  began  as  mortgagee  marketing  the

property  for  sale.     The  registered  proprietors  (the  trustees  of  the

11 At [52].

12 At [53].

13 At [55].

14     Rabobank New Zealand Ltd v Busch, above n 6, at [8].

15     Waterhouse v Westpac New Zealand Ltd [2012] NZHC 1578.

Waterhouse Family Trust) in the meantime entered into an agreement for sale and purchase to Ms  Lambert.   Associate Judge Bell records the details:16

Ms Lambert has signed as purchaser.  The sale is by private treaty. The purchase price was $1.   The settlement date is 11 November

2011. The property was sold subject to a monthly tenancy to Mr and

Mrs Waterhouse with rent payable at $100 a month.

Ms Lambert lodged a caveat claiming an interest under the agreement for sale and purchase.  The bank then, in February 2012, made its application to the Land Registrar to lapse her caveat.   Ms Lambert did not file an application under s 145A.   Her caveat therefore lapsed.   (She was adjudicated bankrupt a few months later).   Mr Waterhouse, in the meantime, in April 2012, lodged his caveat claiming an interest as “occupier with buy-back option …”.   In the caveat-lapsing proceeding, Mr Waterhouse produced a residential tenancy agreement between Ms Lambert (as landlord) and himself and his wife (as tenants) dated the same day as the agreement for sale and purchase.

Associate Judge Bell applied the settled law as applied in the earlier cases whereby the bank’s interest was recognised as taking priority over any interest claimed by the caveator.17   His Honour accordingly dismissed the

application for an order that Mr Waterhouse’s caveat not lapse.

13 February 2013 - Pepper New Zealand (Custodians) Ltd v Busch.18   In this case, the second defendant was the same Megan Busch who had been the defendant in Rabobank New Zealand Ltd v Busch.   The defendant, with whom Ms Lambert appeared as a McKenzie friend, claimed a right to possession under an agreement for sale and purchase which the first defendant, as registered proprietor, had entered into with Ms Lambert in January 2012.  Associate Judge Faire records that agreement as having

included the following:19

16 At [7].

17 At [32].

18     Pepper New Zealand (Custodians) Ltd v Busch [2013] NZHC 187.

19 At [17].

(a)      A purchase price of $1;

(b)      A reference under the heading Tenancies to a 99-year term lease; and

(c)      A term as follows:

The vendor retains the Certificate of Title, no conveyance ... the vendor and the purchaser agree that the purchaser will resell the possession of the land to the vendor for $1 (one dollar only) should the vendor require the purchaser to do so ... the purchaser will remove her caveat at that time.

The plaintiff held a registered mortgage and was seeking possession of the property by summary judgment.  Associate Judge Faire awarded the plaintiff summary judgment for possession.   In doing so, his Honour indicated that indemnity costs were in principle appropriate as against the first defendant.

Bringing that history together

[15]     I have referred earlier to the peculiarity of Ms Lambert’s sale and purchase arrangements.   With minor variations, they have  the same hallmarks.   There is nothing commercially balanced about them.  They are plainly devices to defend the interests of those mortgagors whom Ms Lambert for her own reasons chooses to go out of her way to “support”.

[16]     Ms Lambert is persistently interfering with the rights of lenders who have taken the appropriate steps after lending money to register and, if necessary, realise their  securities.   As Associate  Judge  Faire  observed  in  Watson  v  Williams,  the enforcement of rights under registered mortgages is being obstructed.

[17]     The Court has an additional responsibility in this.  It appears, at least from the judgment in Rabobank New Zealand Ltd v Busch, that at least one litigant who has gone down the caveat path with Ms Lambert, has understood that Ms Lambert was acting as her lawyer.  In Rabobank New Zealand Ltd v Busch, Ms Busch is recorded by Associate Judge Bell as having told the Court that she (Ms Busch) was not a lawyer.   She instead asked to be represented by her lawyer who she identified as

Elizabeth Mary Lambert.20   It transpires that Ms Lambert does not hold a practising certificate.  Whether that arises through her bankruptcy or because of a lack of any underlying qualification, I do not know.   There is a semblance of some legal understanding and an ability to cite (such as in this case) material such as Articles of the Treaty of Waitangi.  This has the potential to lure registered proprietors, who may already be in parlous circumstances, into the hopeless pursuit or defence of caveats.

The issues raised in the opposition in this case

[18]     The essence of Ms Lambert’s argument in support of the interest she claims lies in two sets of agreements for sale and purchase in which she was involved.  She relies on the fact that as trustee she purchased the properties on 11 December 2012 from herself personally, following her purchase from the registered proprietors on 7

December 2011.

[19]     She has not disputed the bank’s evidence which is that the bank’s mortgages were lodged against the titles on 9 May 2005 and 18 May 2005.   She has not disputed the evidence that the loan payments of the registered proprietors under their secured loan agreements were in arrears when the bank issued notices under the Property Law Act 2007 and then proceeded with the marketing and sale of the properties.  She has, in her submissions although not in her notice of opposition to which I will return, suggested there may be defects in the registration of mortgages.

The bank’s unanswerable case

[20]     I apply the same principles as Associate Judge Faire applied in his judgment in Rabobank New Zealand Ltd v Lambert :

The   registered   mortgagee’s   title   is   paramount;   that   includes   the

mortgagee’s right to exercise its power of sale: Congregational Christian

Church of Samoa Henderson Trust Board v Broadlands Finance Ltd.21

20 At [7].

21     Congregational Christian Church of Samoa Henderson Trust Board v Broadlands Finance Ltd

[1984] 2 NZLR 704.

Section 105 Land Transfer Act 1952 provides:

105      Transfer by mortgagee

Upon the registration of any transfer executed by a mortgagee for the purpose of [exercising a power of sale over any land], the estate or interest of the mortgagor therein expressed to be transferred shall pass to and vest in the purchaser, freed and discharged from all liability on account of the mortgage, or of any estate or interest except an estate or interest created by any instrument which has priority over the mortgage or which by reason of the consent of the mortgagee is binding on him.

I refer also to the judgment of Master Venning in Canterbury Finance Ltd v Sagar Trust Ltd.22   That was a case also where the registered proprietor entered into a sale agreement with another person before the mortgagee conducted a mortgagee sale.  The land was sold at the mortgagee sale to

Canterbury Finance Ltd which then brought the High Court proceeding. The  Court  found  that  the  sale  agreement  could  support  a  caveat  but ordered the caveat to be removed.   That was because, as the headnote accurately records,:23

If a mortgagee does not consent to a sale the mortgagee is not bound. Sagar’s interest in the land being subject to the mortgagee’s power of sale was extinguished by the sale to the mortgagee: National Mutual Finance (1988) Ltd v Berryman.

[21]     Accordingly the interest claimed by the caveat as an interest as purchaser under a sale and purchase contract has no priority and is entitled to no protection in respect of the registration of any transfer executed by a mortgagee for the purpose of the exercise of the mortgagee’s power of sale over the land.

[22]     Ms Lambert’s case to protect her caveat must fail in this case (as it has in

earlier proceedings) for that, if for no other reason.

[23]     But other reasons do exist in this case.  The interests Ms Lambert purports to claim under the December 2012 agreements do not have any substance when her

22     Canterbury Finance Ltd v Sagar Trust Ltd (1997) 3 NZ ConvC 192,571 (HC).

23     At [4] of Headnote referring to National Mutual Finance 1988 Ltd v Berryman (HC Wellington

M 451/91, 2 October 1991); Jenssen v Jenssen, Charles Ashton Ltd (CA 246/90, 13 December
1990) and Mewhinney v Permanent Building Society of Otago [1882] 1 NZLR 270).

own (asserted) rights under the December 2011 sales by the registered proprietors had ceased to remain vested in her.  Any interests she had in such property vested from the date of her adjudication in bankruptcy in the Official Assignee: s 101

Insolvency Act 2006.  She personally had no property and no contractual rights to transfer after that date.   She has, in her oral submissions today, referred to a proposition that she had some right to act as she did in relation to the property because  she  was  assisting  the Assignee.    Her  view  that  she  was  assisting  the Assignee, without any request from the Assignee, counts for nothing.

Rejection of other submissions advanced by Ms Lambert

[24]     I have identified the central grounds of opposition pleaded by Ms Lambert and raised by her brief evidence.

[25]     In her submissions, however, Ms Lambert sought to develop other grounds, some of which reflected grounds advanced unsuccessfully in earlier litigation.  In the circumstances, I did not grant leave to Ms Lambert to amend her notice of opposition to include such additional grounds and I do therefore not deal with those matters as issues requiring determination.

[26]     I accordingly mention them only to identify them and to briefly comment:

(a)      A submission that the registered proprietor is free to convey his or her fee  simple  to  whomever  they  wish  for  whatever  price, notwithstanding the presence of a mortgage on the title.   A similar argument to that, in relation to the purported sale by directors in the Plateau Farms Ltd litigation correctly failed.    Ms Lambert’s agreements went nowhere near satisfying the amount owing to the bank in that case, as in this case.

(b)A submission that “leases” in favour of the registered proprietors in some way bound ASB or the purchasers under the mortgagee sale. Such an argument was pursued by Ms Lambert in Watson v Williams and correctly rejected, as it would be in this case.

(c)      A submission based on s 32 Property Law Act 2007 to the effect that ASB in completing the mortgagee sales created instruments which have no effect as sale and purchase agreements.   The proposed submission proceeds on a misunderstanding of the provisions of s 28 and the succeeding provisions of the Property Law Act.   Those provisions  are  concerned  with  the  position  of  a  purchaser  in possession whose vendor is re-entering.

(d)Submissions suggesting that there were defects in the mortgages registered by ASB, so that ASB has no right to enforce the mortgages. This set of submissions was plainly outside the grounds of opposition. I therefore do not consider it further, save to say that Ms Maddren had in her affidavit in support filed in February 2013 provided a complete set of the documentation relevant to the mortgages, all of which appears  in  order.    Ms  Lambert’s  submission  appears to  involve  a fundamental misunderstanding of how mortgage instruments can be registered electronically.   The mortgage instrument in this case was registered electronically by the registered proprietor’s solicitor.

(e)      A submission as to the impact which Articles 1 and 3 of the Treaty of Waitangi might have on the issues in this case.  This argument is one which was not in any way raised in the notice of opposition or evidence.   There can, in any event, be no reliance on the Treaty of Waitangi in relation to the rights of this mortgagee and this caveator under the provisions of the Land Transfer Act.

Outcome

[27]     The applicant is entitled to the orders which it seeks in relation to removal of the caveats.

[28]     It is also just that the applicant receive indemnity costs under r 14.6(4)(a) High Court Rules, on the basis that there are vexatious and unnecessary elements to both Ms Lambert’s opposition to the orders sought and her very involvement in the

schemes which inevitably give rise to this and other proceedings.   The repeated pattern of Ms Lambert’s sale and purchase transactions through the cases which I have referred to also, in my judgment, qualifies “as some other reason” in terms of r 14.6(4)(f) to depart from the usual scale.

[29]     A further reason exists to depart from the usual scale in this case.  It is clear that  Ms  Lambert  undertakes  these  transactions  in  order  to  stave  off  for  the mortgagees (the registered proprietors) the loss of the ownership and possession of their properties.  She has referred in her submissions to the importance in difficult financial times of allowing the owners to remain in their properties.  In doing so, she effectively takes over from the mortgagors the risks of litigation.   Had such mortgagors embarked  on  litigation  themselves,  they would  almost  invariably be obliged, when unsuccessful in their litigation, to pay solicitor/client costs.  That is so in this case because ASB’s loan agreement contains a standard term by which the borrowers agreed to pay on a full indemnity basis all legal expenses on a solicitor/client basis associated with ASB’s enforcement or exercising of its contractual rights.  When Ms Lambert takes it upon herself to defend mortgagors’ interests, it is just as between herself and ASB that ASB should be in no worse a position than if the mortgagors themselves were defending their interests.

[30]     In reaching this conclusion as to  indemnity costs,  I do not overlook the conclusion reached by Associate Judge Faire in Watson v Williams24  in which his Honour decided that awarding increased or indemnity costs against Ms Lambert might be pointless because of her bankruptcy.  I respectfully take a different view. There will be a point to a costs order.  It will be an after-incurred debt for which Ms Lambert and not her bankrupt estate, is responsible.  Given that her scheme has put

the ASB  Bank  in  this  case  to  the  significant  cost  of  an  opposed  High  Court application, the just order is that Ms Lambert pay the solicitor/client costs of the ASB Bank as found by the Court to be reasonable.

[31]     There is a further aspect to the costs award I will make.  Ms Lambert entered her purchase agreement and defends this proceeding as a trustee of the Elizabeth

24     Watson v Williams, above at [14].

Mary Lambert Trust.  The order which I make will be an order which has effect, not only against her personally, but against the assets of that trust.

Orders

[32]     I order:

(a)       Caveat no. 9281228.1 registered by Elizabeth Mary Lambert on 3

January 2013 against the property described in Certificate of Title NA

82D/522 (North Auckland Registry) be removed;

(b)      Caveat no. 9290817.1 registered by Elizabeth Mary Lambert on 21

January 2013 against the properties described in Certificates of Title

51575 and 51574 (North Auckland Registry) be removed;

(c)       The respondent is to pay the applicant’s costs and disbursements of

and incidental to this proceeding which I fix on an indemnity basis at

$11,119.24.    The  costs  are  to  be  payable  both  by the  respondent personally and from the assets of the Elizabeth Mary Lambert Trust.

Associate Judge Osborne

Solicitors:

Minter Ellison Rudd Watts, DX CP24061, Auckland

Defendant self-represented: E M Lambert [address]