ASB Bank Limited v Zheng
[2015] NZHC 495
•17 March 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-000448 [2015] NZHC 495
BETWEEN ASB BANK LIMITED
Applicant
AND
ZHEN ZHENG Respondent
Hearing: 17 March 2015 Appearances:
N Maday for Applicant
Judgment:
17 March 2015
ORAL JUDGMENT OF VENNING J
Solicitors: Minter Ellison Rudd Watts, Auckland
ASB BANK LTD v ZHENG [2015] NZHC 495 [17 March 2015]
[1] This is an application for an order that a caveat be removed.
[2] The applicant Bank holds a first ranking mortgage registered on 19 January
2013 over the relevant property. The mortgage secures money and obligations owed by the registered proprietor. The respondent lodged a caveat on the title to the property on 17 September 2013 after the registration of the applicant’s mortgage. The caveat claims an interest as beneficiary pursuant to a constructive trust based on contributions towards the purchase of the property. The registered proprietor’s account with the Bank is in default. The Bank has issued a notice of default and moved to mortgagee sale. Settlement of the mortgaged property was scheduled for
11 March 2015. A caveat prevents registration of the settlement documentation.
[3] As a prior ranking interest the mortgage takes priority over the caveat. Further, it is proposed that in the event there is a surplus of funds after the sale of the mortgaged property and repayment of costs of sale and satisfaction of the Bank’s mortgage, the surplus will be paid into the trust account of the Bank’s solicitors and held and only released pending agreement between the respondent and the proprietor or orders of this Court.
[4] I am satisfied that it is appropriate to make the orders sought. Any proper interest the caveator has is addressed by the orders sought. Accordingly, there will be orders in accordance with the application before the Court in terms of 1(a) and (b).
[5] Costs to the applicant in the sum of $4,776.00 together with disbursements of
$664.75.
Venning J
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