Creston Limited v McMullin

[2011] NZCA 414

IN THE COURT OF APPEAL OF NEW ZEALAND

CA33/2011
[2011] NZCA 414

BETWEEN  CRESTON LIMITED
Applicant

AND  FIONA MADELEINE MCMULLIN
Respondent

Hearing:         17 May 2011

Court:             Arnold, Stevens and Wild JJ

Counsel:         J Katz QC for the Applicant
Respondent in person

Judgment:      29 August 2011 at 10 am

JUDGMENT OF THE COURT

A        The application is dismissed.
B        No order as to costs.

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REASONS OF THE COURT
(given by Wild J)

1. By application filed on 25 January 2011 the applicant (Creston) applies for an extension of time to appeal a judgment of the High Court, and for leave to adduce further evidence at the hearing of the appeal.

2. An extension of time is needed because the appeal, on Mr Katz’ calculation, is 17 working days out of time.

3. The judgment sought to be appealed is one Priestley J gave on 9 November 2010.[1]  Pursuant to s 145A of the Land Transfer Act 1952, the Judge ordered that caveats the respondent (Ms McMullin) had lodged against two properties in Hamilton not lapse.

   [1]      McMullin v Creston Ltd HC W=Hamilton CIV-2010-419-1034, 9 November 2010.

4. On the evidence he had, we consider Priestley J was correct to sustain the caveats.  Taking the robust approach appropriate, the Judge was entitled to find that $200,000 of Ms McMullin’s money has gone into one or both of the properties she caveated, with the result that she has an equitable interest in one or both the properties.

5. An appeal against Priestley J’s judgment, with further evidence, is not the appropriate way of resolving Ms McMullin’s claim.  We made that clear at the hearing on 15 May.  We made equally clear our view that the appropriate course is for Ms McMullin to bring a proceeding seeking to recover her $200,000.  She has now done that (McMullin v Creston Ltd HC Auckland CIV-2011-404-3736, statement of claim filed on 21 June 2011).

6. For that reason, we dismiss both applications.

7. At the hearing, Mr Katz suggested that this Court require Ms McMullin to give an undertaking (we presume to the High Court) in the sum of $50,000, as security for any compensation she is ordered to pay pursuant to s 146 of the Land Transfer Act 1952.  In the circumstances as we understand them, we decline to require Ms McMullin to give any such undertaking.

8. We reiterate as strongly as we can our view that this dispute should be settled.  If it is not, it is likely to end in one of two ways.  The first way is that the High Court will give judgment ordering Creston Ltd to pay Ms McMullin her $200,000, plus interest, plus legal costs.  In addition, Creston will have to meet its own legal costs.  The other way is that Ms McMullin’s claim will fail.  In that event, she will have to pay Creston Ltd’s costs, and any compensation awarded against her under s 146.  The case cries out for a settlement that recognises in a realistic way the litigation risks each party runs in the High Court proceeding Ms McMullin has brought.

9. In the circumstances, no order as to the costs of the application is appropriate.

Solicitors:
Parlane Law, Auckland for the Appellant