Ferrymead Hardware Limited formerly Ferrymead Retail Limited v Knight

[2019] NZHC 2377

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-487

[2019] NZHC 2377

UNDER

Sections 143 and 146 of the Land Transfer Act 2017

IN THE MATTER OF

an application for an order that a caveat not lapse

BETWEEN

FERRYMEAD HARDWARE LIMITED FORMERLY FERRYMEAD RETAIL

LIMITED
Applicant

AND

JILL KNIGHT and GREGORY MILESI

Respondents

Hearing:	19 September 2019
Counsel:	A J Davis for the Applicant
Judgment:	19 September 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 19 September 2019 at 4.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 19 September 2019

FERRYMEAD HARDWARE LTD FORMERLY FERRYMEAD RETAIL LIMITED v KNIGHT [2019]

NZHC 2377 [19 September 2019]

[1]                 In this proceeding, the applicant seeks an order that its caveat lodged against Certificate of Title CB14F/1107 Canterbury Registry not lapse and an order as to costs.

[2]The proceedings were served at the end of August 2019.

[3]The respondents have taken no steps.

[4]                 The caveat sought to be sustained was lodged by the applicant in reliance on an agreement to mortgage contained in a credit application completed on behalf of a company called Four Shore Building Construction Limited (“Four Shore”). The credit application contained a guarantee given by a Mr Douglas MacDonald.

[5]                 Four Shore was placed  in liquidation in  May 2014.  Mr MacDonald owned  a half share in the property that is subject to the caveat. The caveat that has been lodged is against the share of Mr MacDonald. Apparently, Mr MacDonald has died and so his executor has been named as a respondent to this application.

[6]                 Mr Milesi is the executor. Ms Knight has also been named as respondent as the letter issued by Land  Information New  Zealand to the  caveator  advising that    a notice of lapse had been received, recorded that the application to lapse the caveat had been made by both Ms Knight and Mr Milesi.

[7]                 Having reviewed the credit account application form and in particular the agreement to mortgage given by the guarantor, I am satisfied that the applicant’s caveat has a reasonable basis and should be sustained.

[8]                 Accordingly, there is an order that the caveat against dealing 11518653 lodged against the property described as an estate in fee simple being Lot 45, Deposited  Plan 35246 comprised in Certificate of Title CB14F/1107, Canterbury Registry, not lapse.

[9]                 The applicant seeks costs and there is no reason why costs should not follow the event. Accordingly, there is an order that the respondents are jointly and severally liable to pay to the applicant costs on the application on a 2B basis together with disbursements as fixed by the Registrar.

Associate Judge Lester

Solicitors:
Clark Boyce, Christchurch