Emmott v Michael Wilson & Partners Limited - [2016] NZHC 3155

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-973 [2016] NZHC 3155

BETWEEN
JOHN FORSTER EMMOTT

Applicant

AND

MICHAEL WILSON & PARTNERS LIMITED

Respondent

Hearings: 13 December 2016 and (by telephone) 19 December 2016

Appearances:

A J Knowsley and D Hunt for the applicant
K P Sullivan for the respondent

Judgment:

20 December 2016

JUDGMENT OF ASSOCIATE JUDGE SMITH

[1] The applicant applies for an order under s 145A of the Land Transfer Act

1952 (the Act) for an order that a caveat lodged by him against the title to certain land in Roseneath, Wellington, not lapse. The respondents filed a notice of opposition, and the application was called before me on 13 December 2016. At that hearing Mr Sullivan submitted that the applicant had no possible basis to support his claim that he had a caveatable interest, and that the Court should dismiss the application immediately. After hearing from counsel, I directed that the parties file memoranda on the narrow caveatable interest point to which I refer below. I adjourned the application for counsel to make oral submissions (limited to that point) at a further hearing to be conducted by telephone on 19 December 2016.

[2] In my minute of the hearing on 13 December 2016 I noted that if on hearing further from counsel it appeared that the applicant’s caveatable interest point might be arguable, it would probably be appropriate for the Court to then make an interim sustaining order, to allow the issues to be argued more fully in the new year. If on
the other hand it appeared clear that a party in the applicant’s position could have not

EMMOTT v MICHAEL WILSON & PARTNERS LIMITED [2016] NZHC 3155 [20 December 2016]

caveatable interest of the kind contended for, the appropriate order might be to dismiss the application.

[3] Having received counsel’s memoranda and heard further oral submissions, I

now give judgment on the application.

Background

[4] For many years the respondent, the applicant, and Mr Thomas Ian Sinclair have been involved in litigation in a number of jurisdictions around the world. The respondents holds judgments against Mr Sinclair in the Bahamian Court of Appeal, the Bahamian Supreme Court, and in the Judicial Committee of the Privy Council. Those judgments are predominantly for costs awards. The respondent also hold judgments against Mr Sinclair for costs in the New Zealand High Court and Court of Appeal.

[5] The respondent’s judgments against Mr Sinclair are now (or will soon be) able to be enforced in New Zealand, following a judgment of the Court of Appeal delivered earlier this year1 and a more recent judgment of Mallon J in this court
delivered on 14 December 2016.2

[6] On 6 October 2015 the respondent registered a charging order (“the charging order”) against a property owned by Mr Sinclair in Carlton Court Road, Roseneath, Wellington (Lot 2, Deposited Plan 52146, title identifier WN22B/114 — “the property”). The property contains a substantial dwelling which is also used for a bed and…

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: [2016] NZHC 3155
Decision Date: 20 December 2016

CaseChat Overview and Summary

Emmott v Michael Wilson & Partners Limited [2016] NZHC 3155 involved an application by John Forster Emmott for an order under s 145A of the Land Transfer Act 1952 that a caveat he had lodged against a property in Roseneath, Wellington, not lapse. The respondent, Michael Wilson & Partners Limited, opposed the application and argued that Emmott had no caveatable interest in the property. The case involved a complex web of litigation between Emmott, Michael Wilson & Partners, and Thomas Ian Sinclair, with judgments and orders issued in various jurisdictions. Emmott claimed an equitable lien over a charging order that Michael Wilson & Partners had registered against Sinclair's property, but the court was not persuaded that Emmott had any arguable claim to a beneficial interest in the charging order. The court refused Emmott's application for an order that the caveat not lapse and ordered that Michael Wilson & Partners were entitled to costs.

Orders