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.…

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.

Continue reading ASB Bank Limited v Lambert

Details

AGLC: ASB Bank Limited v Lambert [2013] NZHC 947
Case: [2013] NZHC 947
Decision Date: 1 May 2013

CaseChat Overview and Summary

In the High Court of New Zealand, ASB Bank Limited sought to remove two caveats lodged by Elizabeth Mary Lambert, as trustee of the Elizabeth Mary Lambert Trust, against three Kerikeri properties. ASB Bank, a mortgagee with first-ranking priority, had exercised its power of sale over the properties and sold them at auction on 30 November 2012. However, settlement could not occur on 13 January 2013 due to the caveats lodged by Lambert in December 2012. Lambert claimed a valid caveatable interest in the properties, arguing that she had purchased them from herself personally and then from the registered proprietors.

The legal issues the court had to decide were whether Lambert's claimed interests were arguable and how they should be approached in light of ASB Bank's rights as a mortgagee. The court also had to consider the interests of third parties who had purchased the properties at auction in November 2012.

The court found that Lambert's claimed interests were not arguable, as the registered proprietor's interest in the land ended with the transfer by the mortgagee to the mortgagee's purchaser. As a result, nothing would support a caveat. The court applied the same principles as in previous cases, determining that the interests claimed by Lambert had no priority and were not entitled to protection in respect of the registration of any transfer executed by a mortgagee for the purpose of exercising the mortgagee's power of sale over the land.

The court ordered the removal of the caveats and awarded ASB Bank indemnity costs on the basis that Lambert's opposition to the orders sought and her involvement in the schemes that gave rise to this and other proceedings were vexatious and unnecessary. The court also found that Lambert's actions effectively took over from the mortgagors the risks of litigation, and it was just that ASB Bank should be in no worse a position than if the mortgagors themselves were defending their interests.

Orders