Chinappa v Narain - [2020] NZHC 978

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2638

[2020] NZHC 978

UNDER Section 142 of the Land Transfer Act 2017

BETWEEN

AJNESH NARAIN CHINAPPA and VILASHNI VANDANA CHINAPPA

Applicants

AND

ANGELINE DEEP NARAIN

Respondent

Virtual hearing: 11 May 2020

Appearances:

NTC Batts for the applicants SCR Raju for the respondent

Judgment:

13 May 2020

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 13 May 2020 at 3.00pm.
Pursuant to Rule 11.5 of the High Court Rules

………………………… Registrar/Deputy Registrar

Solicitors:
Haigh Lyon, Auckland
Aaron Kashyap, Auckland

CHINAPPA v NARAIN [2020] NZHC 978 [13 May 2020]

[1] By the present application, under s 142 of the Land Transfer Act 2017, the Chinappas seek to remove Ms Narain’s caveat over their residential property in Auckland’s Panmure.

Background

[2] Ms Narain’s caveatable interest is said to be her advance of funds to the Chinappas – the initial deposit and the final shortfall, together comprising roughly half the purchasers’ contribution – for purchase of the property in March 2009 pursuant to an oral agreement between the parties. Ms Narain is Mrs Chinappa’s sister. The parties lived in the Panmure property, together with Ms Narain’s partner and the sisters’ mother, until early 2012 when the Chinappas served trespass notices on the other occupants.

[3] In April 2012, Ms Narain lodged a caveat against the property’s title. When the Chinappas applied to the Registrar of Lands for the caveat to lapse, Ms Narain applied to this Court for orders the caveat be sustained. Doogue AJ identified Ms Narain had to show:1
… she has an arguable equitable interest in the property which justifies the continued presence on the register of the caveat in order to protect [her] position … while she take[s] steps to assert her claim.

[4] On Ms Narain’s “not straightforward or clear” evidence, Doogue AJ nonetheless was “not prepared to conclude that [Ms Narain] does not have a reasonably arguable case for sustaining the caveat”, and therefore sustained it “until further order of the Court”.2 The Judge expressly noted:
It may be … because of the apparent closeness of the family, boundaries between one party’s property and another’s property were not regarded as important as they might be in other families in which there might be more emphasis on keeping a family member’s property strictly separated from that of other family members.

[5] That was on 4 September 2013. In November 2019, the Chinappas made the present application for the caveat’s removal, on grounds no substantive proceedings

1 Narain v Chinappa [2013] NZHC 2286 at [19].
2 At [41]–[43].

yet had issued, and they were prejudiced by their continuing inability to deal with their property. No timely opposition was filed by Ms Narain, but a notice of opposition was handed up by counsel at the application’s first call on 17 December 2019, Gault J saying in relation to the foreshadowed substantive proceeding she “needs to progress the matter without…

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 Chinappa v Narain

Details

AGLC: Chinappa v Narain [2020] NZHC 978
Case: [2020] NZHC 978
Decision Date: 13 May 2020

CaseChat Overview and Summary

In Chinappa v Narain, the applicants, Ajnesh Narain Chinappa and Vilashni Vandana Chinappa, sought to remove a caveat over their residential property lodged by Angeline Deep Narain, who is Mrs Chinappa's sister. The property was purchased in 2009 by the Chinappas with funds advanced by Ms Narain, who claimed an interest in the property. Ms Narain lodged a caveat in 2012, which was sustained by the court. The Chinappas applied for the caveat to be removed on the grounds of delay and prejudice, while Ms Narain opposed the application.

The court considered the legal issues regarding the removal of a caveat under Section 142 of the Land Transfer Act 2017. The court noted that while the caveat should generally be maintained once a reasonably arguable case has been established, there is a residual discretion to remove it if the caveator's legitimate interests will not be prejudiced. The court also noted that culpable and serious delay to the prejudice of the registered proprietor has been held to justify the exercise of the discretion to remove a caveat.

The court found that the eight-year gap between lodging the caveat and issuing proceedings to enforce its foundation was extensive. The court also found that the Chinappas had not provided a basis for the exercise of the court's discretion to remove the caveat, as they had not shown what legitimate interest, reasonable expectation of benefit, or practical advantage continuation of the caveat secured. The court was not completely satisfied that Ms Narain's legitimate interests were not prejudiced by the caveat's removal. However, the court noted that the Chinappas and Ms Narain's delay in resolving the dispute should not continue, and ordered that Ms Narain must expeditiously pursue her substantive proceeding to determination, and the Chinappas have leave to re-apply for the caveat's removal if she does not.

The court dismissed the Chinappas' application for removal of the caveat and reserved the issue of costs for determination on a short memorandum of no more than five pages.

Orders