ASB Bank Ltd v Lambert - [2013] NZHC 2135

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2013-419-761 [2013] NZHC 2135

BETWEEN ASB BANK LIMITED Applicant

ANDELIZABETH MARY LAMBERT in her personal capacity and as trustee of the ELIZABETH MARY LAMBERT TRUST Respondent

Hearing: 20 August 2013

Counsel: B J Upton and L M L Lim for Applicant
Respondent in Person

Judgment: 22 August 2013

JUDGMENT OF RONALD YOUNG J

Introduction

[1] This is an application by the ASB that a caveat be removed and that Mrs Lambert personally and as trustee of the Elizabeth Mary Lambert Trust (EML Trust) be restrained from lodging any further caveats against a property at Wood Bay Road, Titirangi. ASB’s application for an injunction also seeks to prevent Mrs Lambert from interfering with a proposed mortgagee sale by the ASB with respect to the property and attempting to transfer title to the property to herself.

[2] The ASB are the holder of a first registered mortgage over the property at

37 Wood Bay Road, Titirangi. The registered proprietors of the property are Matthew Jenkins, Maya Ishida and SWL Trustee Limited. The mortgage was first registered on 13 February 2009. There are two loan advances covered by the
mortgage, one for $492,000 and the other for $300,000, and the priority amount is

ASB v LAMBERT [2013] NZHC 2135 [22 August 2013]

$922,500. I refer to Mrs Lambert as the “purchaser” and “caveator” acknowledging

she is the trustee of the EML Trust.

[3] Mortgage payments are in arrears and the ASB Bank wish to exercise its power of sale under the mortgage. On 31 May 2013 EML Trust lodged a caveat against the title at Wood Bay Road, Titirangi. EML Trust claims that they have a caveatable interest in the property arising from a sale and purchase agreement of
28 March 2013. In that agreement Mr Jenkins and Ms Ishida (not SWL Trustee

Limited) purport to sell the Wood Bay Road property to Mrs Lambert. The price is

$1,400,020. The settlement date is 2063, 50 years hence and the deposit payable

$20.

The orders sought

[4] The ASB seeks an order that the caveat be removed pursuant to s 143 of the

Land Transfer Act 1952. There are two primary grounds. They are:

(a) that the agreement for sale and purchase to Mrs Lambert as purchaser is invalid. First, because not all of the registered proprietors have entered into the agreement, and secondly, because the Lambert agreement for sale and purchase is a sham entered into for the purpose of interfering with ASB’s right to sell; and

(b)whatever Mrs Lambert’s interest in the Titirangi property is it is subject to ASB’s indefeasibility rights under the mortgage to exercise its power of sale.

[5] In support of the orders for injunction the applicant says that Mrs Lambert is well known to financiers and the courts as an habitual caveator without proper cause. There have been a significant number of judgments of this Court involving broadly similar circumstances where Mrs Lambert’s caveats have been ordered…

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: [2013] NZHC 2135
Decision Date: 22 August 2013

CaseChat Overview and Summary

ASB Bank Ltd sought to remove a caveat that Elizabeth Mary Lambert had lodged against a property at Wood Bay Road, Titirangi, and sought an injunction to prevent Lambert from lodging further caveats and interfering with the mortgagee sale. Lambert claimed a caveatable interest in the property by virtue of a sale and purchase agreement she had with the registered proprietors of the property. The court had to determine whether Lambert's claim of a caveatable interest was valid and whether an injunction was necessary to prevent Lambert from interfering with the mortgagee sale. The court found that the sale and purchase agreement was a sham and that Lambert never had any interest in the land. The court also found that Lambert's conduct warranted an injunction to prevent her from lodging further caveats and interfering with the mortgagee sale. The court ordered that the caveat be removed, that Lambert be permanently restrained from lodging further caveats and interfering with the mortgagee sale, and that Lambert pay indemnity costs to ASB Bank.

Orders