Asteron Trust Services Ltd v Lambert

[2013] NZHC 1043

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2013-419-347 [2013] NZHC 1043

BETWEEN  ASTERON TRUST SERVICES LTD Applicant

ANDELIZABETH MARY LAMBERT Respondent

Hearing:         10 May 2013

Counsel:         NFD Moffatt and LJ McNeely for Applicant

Respondent in person

Judgment:      10 May 2013

JUDGMENT OF BREWER J

This judgment was delivered by me on 10 May 2013 at 12 noon pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS

Bell Gully (Auckland) for Applicant

(Copy to Respondent in person)

ASTERON TRUST SERVICES LTD V LAMBERT HC HAM CIV-2013-419-347 [10 May 2013]

Introduction

[1]      The applicant applies for orders that a caveat be removed from property and that it be awarded indemnity costs.[1]

[1] Caveat 9303438.1, certificate of title 130488 (North Auckland Registry).

[2]      The applicant is the holder of the first ranking mortgage over the property.  It was registered on 9 March 2007.  The mortgagor is in default under the mortgage.[2]

Accordingly, the applicant wishes to sell the property by mortgagee sale.

[2] It failed to repay the sum of $4,310,000 plus interest and costs and these sums became due on

31 March 2010.

[3]      The respondent, Elizabeth Mary Lambert, opposes.   On 6 December 2011, Ms Lambert  registered  a caveat  over the property ostensibly to  secure rights  in respect of an agreement for sale and purchase dated 21 April 2011 under which she agreed  to  purchase  the  property  for  $5,500,000.    That  caveat  has  since  been removed.

[4]      Ms Lambert was adjudicated bankrupt by creditor’s application on 28 May

2012.   On 23 November 2012, the Official Assignee disclaimed the 21 April 2011 agreement through a notice of disclaimer issued under s 117 of the Insolvency Act

2006.

[5]      On 4 February 2013, Ms Lambert registered the caveat with which I am concerned.  The interest protected is expressed as being a sub-sale to the Elizabeth Mary Lambert Trust  (the Trust)  by Ms Lambert  of  all  Ms Lambert’s  estate and interest as purchaser under the 21 April 2011 agreement.  The sub-sale agreement is dated 11 November 2012, the purchase price is $10.00.  Ms Lambert signed the sub-

sale agreement as a trustee of the Trust.[3]   She appears in that capacity today.

[3] There is no other signature on behalf of the Trust.  By memorandum dated 30 April 2013, the other trustee denies any knowledge of the sub-sale agreement. In other circumstances this denial might be the focus of the application.

[6]      Ms  Lambert’s  opposition  to  the  application  is  set  out  in  a  synopsis  of submissions dated 2 May 2013.   This is backed by two affidavits by Ms Lambert,

one in her own capacity and one in her capacity as trustee.  Her arguments relate to

rights she submits have accrued to the Trust by virtue of the sub-sale and which can be maintained against the registered interests of the applicant.

[7]      Ms Lambert was once a barrister and solicitor of this Court.  It is evident that she has a strong belief in the arguments she makes.  My task, however, is to decide the application in accordance with established law.

Discussion

[8]      It is trite law that interests registered on the title of a property take priority over subsequent interests.  Any rights at law or equity created by the agreements are subject to the applicant’s rights as mortgagee.   These include the right to sell at mortgagee sale free of subsequent interests.

[9]      There are exceptions to this general rule.  They include situations of notice, agreement, acquiescence, and substantive unfairness.  There are no such situations here.

[10]     I do not need to consider Ms Lambert’s submissions further since none can prevail against this basic doctrine of law.  However, I will mention two other matters fatal to her arguments:

(a)      Ms Lambert was a bankrupt when she purported to sign the sub-sale agreement.  She no longer had any interest in the head agreement or the  property  itself  which  was  hers  to  sell.    She  could  give  no caveatable interest.

(b)The  disclaimer  of  the  head  agreement  by  the  Official  Assignee severed any link between the Trust and the property. Again, there was no caveatable interest.

Costs

[11]     Ms Lambert makes a habit of entering into agreements which enable her to lodge caveats.  She then, despite having no hope of maintaining the caveats, opposes their removal.  The judgment of Associate Judge Osborne delivered on 1 May 2013 is relevant to the wider legal matters contended for by Ms Lambert and also details seven other cases with which she has been involved.[4]    This case is, therefore, the ninth occasion on which she has indulged her interest in this area.  This is relevant to costs, and I propose to award these on an indemnity basis.

[4] ASB Bank Ltd v Lambert HC Hamilton CIV-2013-419-204, 1 May 2013.

Orders

[12]     I order:

(a)       Caveat   9303438.1,   registered   by   Elizabeth   Mary   Lambert   on

4 February 2013 against the property in certificate of title 130488 (North Auckland Registry), be removed;

(b)The respondent is to pay the applicant’s costs and disbursements of and incidental to this proceeding on an indemnity basis.  The costs are to be payable by Ms Lambert personally.  The applicant may ask the

Registrar to fix these costs.

Brewer J