French v Dolbel - [2023] NZHC 91

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2022-463-10

[2023] NZHC 91

BETWEEN
SALLY-KAE NOELENE FRENCH

Plaintiff

AND

LINDSAY GLENN DOLBEL

Defendant

Hearing: 16 November 2022 at 2:15pm

Appearances:

Scott McKenna for the Plaintiff

Michelle Urquhart/Fraser Wood for the Defendant

Judgment:

7 February 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[application for removal of caveat from title]

This judgment was delivered by me on 7 February 2023 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

………………………….
Registrar/Deputy Registrar

Solicitors:
McKenna King Dempster (Scott McKenna), Hamilton, for the Plaintiff Tompkins Wake (Fraser Wood/Michelle Urquhart), Rotorua, for the Defendant

FRENCH v DOLBEL [2023] NZHC 91 [7 February 2023]

Introduction

[1] These proceedings involve a claim by the plaintiff, Ms French, to enforce an agreement for sale and purchase of a property belonging to the defendant, Mr Dolbel.

[2] Ms French lodged a caveat on the title to the property on 26 July 2022 (Caveat 11771811.1) (the Caveat), lodged on the title to Lot 9 Deposited Plan South Auckland 11090, being the property at 5 Harakeke Road, Murupara (the Property).

[3] Mr Dolbel opposes the plaintiff’s claim and says that he did not sign the sale and purchase agreement.

[4] Ms French has now been charged by the Police with forgery relating to Mr Dolbel’s alleged signature on the sale and purchase agreement. These proceedings are to be stayed pending resolution of those criminal charges.

[5] Mr Dolbel has asked the Court to remove the Caveat from the title to the Property.

Background

[6] On 2 July 2022, Mr Dolbel applied for the Caveat on the title to the Property to lapse. On 26 July 2022, Ms French applied to the High Court to sustain the Caveat. Those proceedings are brought under CIV-2021-463-60 (the Caveat Proceedings).

[7] On 21 February 2022 Lang J released a minute in the Caveat Proceedings recording his view that, given the factual disputes involved in this matter, the most appropriate way forward was to make an order sustaining the Caveat on the terms that Ms French file proceedings seeking specific performance of the agreement for sale and purchase. On 22 February 2022, Lang J released a further minute making an order, by consent, sustaining the Caveat and directing that Ms French file proceedings for specific performance.

[8] On 8 March 2022, Ms French filed the application for specific performance thereby initiating these proceedings.

[9] On 17 June 2022, Mr Dolbel made an application for security for costs which was set down for a hearing on 7 October 2022. On 4 October 2022, in the interim, Ms French made an application for a stay of the proceedings. On 7 October 2022 a conference was held and counsel for Mr Dolbel did not oppose the stay these proceedings but requested that if the proceedings are stayed the Caveat on the Property be removed. At that hearing I indicated that the proceedings will be…

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 French v Dolbel

Details

AGLC: French v Dolbel [2023] NZHC 91
Case: [2023] NZHC 91
Decision Date: 7 February 2023

CaseChat Overview and Summary

In this case, the plaintiff, Ms French, lodged a caveat on the property belonging to the defendant, Mr Dolbel, and claimed enforcement of an agreement for sale and purchase. Mr Dolbel opposed the claim, arguing that he did not sign the sale and purchase agreement. The proceedings are currently stayed pending the resolution of criminal charges against Ms French. Mr Dolbel sought the removal of the caveat from the title to the property. The court had to determine whether it had jurisdiction to remove the caveat and, if so, whether the circumstances justified its removal. Mr Dolbel argued that the caveat proceedings were still on foot, and the court had jurisdiction to remove the caveat if it did not prejudice Ms French's alleged interest in the property. However, Ms French argued that the court did not have jurisdiction to remove the caveat in these proceedings, and any such application should be made in the caveat proceedings. The court agreed with Ms French's submissions and held that it did not have jurisdiction to remove the caveat under these proceedings. It is open to Mr Dolbel to make an application under the caveat proceedings to have the caveat removed or lapsed. The proceedings are stayed until the outcome of the criminal proceedings against Ms French are determined, and the caveat registered against the property is sustained until a further order of the court is made in the caveat proceedings. Costs are reserved.

The court's decision in this case highlights the importance of following the correct statutory procedures when dealing with caveats. The court held that the caveat can only be removed or lapsed in accordance with the provisions of the Land Transfer Act 2017, and any application to remove or lapse a caveat must be made as an originating application under the relevant section of the Act. The court also emphasised that the caveat is a creation of the statute, and any discretion to remove or sustain the caveat is limited by the statutory provisions. This decision provides clarity on the jurisdiction of the court to remove a caveat and the importance of following the correct legal procedures when dealing with such matters.

Orders