Cressida Capital One Ltd v Mapp - [2013] NZHC 1666

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-1407 [2013] NZHC 1666

IN THE MATTER
of Section 143 of the Land Transfer Act

1952

BETWEEN

CRESSIDA CAPITAL ONE LIMITED Plaintiff

AND

VANESSA LOUISE MAPP First Defendant

MILES BUCKINGHAM Second Defendant

Hearing: 3 July 2013

Appearances:

J. Toebes - Counsel for Plaintiff
No appearance for the first and second defendants

Judgment:

3 July 2013

ORAL JUDGMENT OF JUSTICE D.I. GENDALL

CRESSIDA CAPITAL ONE LIMITED v MAPP [2013] NZHC 1666 [3 July 2013]

Introduction

[1] The plaintiff applies for an order for removal of caveat 9432051.1 lodged by the first defendant against certificates of title 49A/272 and 57A/439 (Wellington Land Registry).

[2] No Notice of Opposition to this application has been filed for or on behalf of either the first defendant or the second defendant nor has there been any appearance before me at the hearing of this matter today on behalf of either defendant.

[3] As to that aspect it appears from the Court file that on 20 June 2013 the defendants provided a memorandum to this Court to state that they were instructing counsel on their behalf in this matter and that it would take 2 days to prepare for a hearing of the plaintiff’s application but a date after 24 June 2013 was suitable.

[4] As I understand the position, the defendants were served with the application and all supporting papers, were informed of the hearing date for this matter today, 3
July 2013 and have not responded in any way. As I have mentioned above there is no appearance for either defendant today.

Background Facts

[5] The plaintiff is the registered first mortgagee of the residential property comprised in certificates of title 49A/272 and 57A/439 (the property) over which the caveat in question has been registered. The plaintiff’s mortgage 8996461.5 was registered on 7 March 2012 and secures in favour of the plaintiff all the indebtedness of the registered proprietor mortgagor of the property, Twig Luxury Trustee Company Limited (the mortgagor). This indebtedness, as I understand the position, is presently in excess of $950,000.00.

[6] The mortgagor company, Twig Luxury Trustee Company Limited, has as its sole director the second defendant, Mr Buckingham and, as I understand it, the first defendant Ms Mapp and her interests are shareholders in this company.

[7] Significant defaults have occurred under the mortgage between the mortgagor and the plaintiff. The plaintiff became mortgagee in possession of the property, as I understand it on 11 April 2013. This was pursuant to an application to the Court for an order for vacant possession under s 137 Land Transfer Act, and the making of that order when redemption of the mortgage was not completed by 2.00 pm on Wednesday, 12 June 2013 as required.

[8] On 15 June 2013 the plaintiff as mortgagee exercised its power of sale under the mortgage by entering into an unconditional contract for the sale of the property. Settlement under this sale agreement was scheduled for Tuesday, 18 June…

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 1666
Decision Date: 3 July 2013

CaseChat Overview and Summary

Cressida Capital One Limited, as the registered first mortgagee of a residential property, sought to remove a caveat lodged by Vanessa Louise Mapp against the property's titles. The caveat was registered by Ms Mapp on 17 June 2013, just two days before the scheduled settlement of an unconditional contract for sale of the property by Cressida Capital One Limited. The property was held by Twig Luxury Trustee Company Limited, which had defaulted on its mortgage obligations with Cressida Capital One Limited. The mortgagee had gained possession of the property on 11 April 2013 and subsequently exercised its power of sale. The caveat claimed a caveatable interest in the property by Ms Mapp as a beneficiary under a constructive trust of which the mortgagor was the trustee. Cressida Capital One Limited argued that the caveat was a mischievous attempt to undermine the sale and that it had not consented to the claimed interest.

The court had to decide whether the caveat could be justified and, if not, whether the court should exercise its residual discretion to remove the caveat. The court found that the caveat was not justified as there was no evidence to support the claimed interest. Additionally, the court found that even if the caveat had a reasonably arguable case, the court should exercise its residual discretion to remove the caveat. The court reasoned that a registered mortgagee's title was paramount, including the mortgagee's right to exercise its power of sale. Since the mortgagee had not consented to the claimed interest, the interest was extinguished by the sale to the mortgagee. The court ordered the caveat to be removed to allow the mortgagee sale to be completed.

The court made orders for the caveat to be withdrawn and authorized Cressida Capital One Limited to withdraw the caveat if it was registered. The court also reserved the issue of costs and directed the parties to submit memoranda on the issue of costs.

Orders