ATE Property Limited v Roman Catholic Bishop of the Diocese of Dunedin
[2025] NZHC 3256
•30 October 2025
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2025-412-105 [2025] NZHC 3256
UNDER the Land Transfer Act 2017
IN THE MATTER of an application that a caveat not lapse BETWEEN ATE PROPERTY LIMITED
Applicant
ANDROMAN CATHOLIC BISHOP OF THE DIOCESE OF DUNEDIN
Respondent
Hearing: 23 October 2025
Counsel: B F Maguire for Applicant
No appearance for Respondent
Judgment: 30 October 2025
JUDGMENT OF ASSOCIATE JUDGE LESTER
ATE PROPERTY LIMITED v ROMAN CATHOLIC BISHOP OF THE DIOCESE OF DUNEDIN [2025] NZHC 3256 [30 October 2025]
[1] On 8 October 2025, I made an interim order sustaining ATE Property Limited’s (ATE) caveat over land owned by the respondent.
[2] ATE’s originating application to sustain the caveat was served on solicitors acting for the respondent on 22 September 2025. An endorsed copy of the originating application recording that the first call of the application to sustain the caveat was to take place on 23 October 2025 was sent by email to that solicitor on 23 September 2025. The respondent’s solicitor had confirmed she was authorised to accept service and confirmed receipt of the proceedings.
[3] Accordingly, I am satisfied that service was validly completed pursuant to an agreement to accept service.
[4] The respondent has taken no steps to defend the application to sustain the caveat.
[5] ATE claims a caveatable interest pursuant to a signed lease dated 17 October 2024, over land at the Holy Name Parish Church on Great King Street, Dunedin. The lease is in respect of car parks on site. The lease document is signed by Fr Chamberlain who affixed the seal or stamp for the Holy Name Parish Church to the lease.
[6] While there is correspondence between the parties that queries whether Fr Chamberlain had actual or apparent authority to sign the lease, the fact is the respondent has not filed an opposition. Whether the question of authority (if such is indeed in issue) could be determined on a caveat application, cannot be assessed in the absence of evidence or submissions from the respondent.
[7] We come back to the application being unopposed. With ATE holding a signed lease, the challenge to the caveat was always going to present difficulties given the relatively low threshold that applies to the sustaining of a caveat.
[8] Accordingly, there is an order in terms of paragraph 1.2 of the originating application dated 22 September 2025. The caveat, subject to the order not lapse, is that described at paragraph 1.1 of the application dated 22 September 2025.
Costs
[9] The originating application sought indemnity costs against the respondent. ATE put the respondent on notice that if an application to sustain was required, indemnity costs would be sought.
[10] I have already commented on the apparent strength of ATE’s position in respect of its application to sustain the caveat, given it is based on a written lease. I am satisfied that indemnity costs are appropriate but decline to fix costs in the sum sought by ATE because some of the costs sought would, on the face of the invoice provided, pre-date the issue of the proceedings as they capture steps prior to the filing of the originating application. Costs fixed in relation to a proceeding must relate to that proceeding, not to steps prior to the proceeding.
[11] Mr Maguire may file an amended memorandum which removes from the indemnity costs claimed, those steps that pre-date the preparation of and filing of the originating application. If ATE prefers to have costs on a 2B basis plus disbursements as fixed by the Registrar, it may elect to claim costs on that basis by filing a memorandum to that effect with the Registry, along with the appropriate scale costs calculation.
Associate Judge Lester
Solicitors:
Saunders Robinson Brown, Christchurch
Copy to counsel:
G D Jones, Barrister, Christchurch
Copy to:
The respondent
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