General Finance Limited v Lau
[2023] NZHC 2205
•16 August 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV2023-404-001364 CIV2023-404-001506
CIV2023-404-001608 [2023] NZHC 2205
UNDER the Declaratory Judgments Act 1908 BETWEEN
GENERAL FINANCE LIMITED
Applicant
AND
EU KUOH (AUGUSTINE) LAU
First Respondent
AND
LIYUN CHEN
Second Respondent
Hearing: 9 and 16 August 2023 Appearances:
M G P Martin for the Applicant E K Lau in person
Judgment:
16 August 2023
ORAL JUDGMENT OF WHATA J
This judgment was delivered by me on 16 August 2023, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors:
Martelli McKegg, Auckland Copy to: E Lau, L Chen
GENERAL FINANCE LIMITED v LAU [2023] NZHC 2205 [16 August 2023]
[1]General Finance Limited (GFL) seeks the following orders:
(a)removal of caveat registered by Mr Lau against the property at 9 Sunderlands Road, Half Moon Bay (the Property);1
(b)removal of notice of claim by Mr Lau against the title to the Property;
(c)a declaration that a document, alleged by Mr Lau and Ms Chen to be a residential tenancy agreement in respect of the Property is unlawful, invalid and of no effect.
[2] These matters have come before the Court in a haphazard way reflecting and responding to various steps taken by Mr Lau to protect his interests. I resolved in a telephone conference the day before the initial of hearing this matter, that we should focus on the application to remove the caveat, being the most pressing matter for GFL.
[3]The central issues in dispute are whether:
(a)It is reasonably arguable that Mr Lau has any interest in the Property that might sustain the caveat; and
(b)I should exercise my discretion to remove the caveat in any event.
Process post first hearing
[4] At the hearing I indicated to Mr Martin and Mr Lau that various matters needed to be attended to in order to put the case on a proper footing before me. I mean no criticism of the parties in this regard. It is simply a reflection of the mobile and urgent nature of the matters in dispute. In this regard:
(a)Given the relevant information was spread across multiple files and at least two sets of proceedings, a further common bundle was necessary with all key documents included.
1 The application to remove caveat in respect of another property at 92 Jeffs Road, Flat Bush was withdrawn prior to the hearing.
(b)I also indicated to Mr Martin that further attention was needed in terms of specific legal issues and associated authorities.
(c)Mr Lau also needed to produce affidavit evidence as to various matters he had raised, and in particular he needed to confirm the date of execution of a separation agreement, a tenancy agreement, a lease and the sale and purchase agreement which he says provide the basis for his caveatable interest.
[5]As a consequence of this, I gave leave to:
(a)Mr Martin to file a further bundle of documents and authorities, together with supporting submissions.
(b)Mr Lau to file affidavits in relation to the above documents, together with any further submissions in reply.
[6] Mr Martin filed submissions and Mr Lau filed two affidavits, one by him and another by his mother. His affidavit confirms aspects of his account of matters and attaches a copy of the lease. His mother’s affidavit confirms she witnessed the execution of the separation agreement. The affidavits did not in fact confirm the dates when the various agreements were signed. But Mr Lau confirmed that he would be happy to swear before me that the dates were as stated. He also filed submissions.
[7]A further brief hearing was also convened.
Background
[8] The full background to this matter is set out in the judgments of Gordon J and Davison J.2 This is a shortened account.
[9] On 4 February 2022, Ms Chen, as Trustee for the Royall Family Trust, executed as borrower / mortgagor, and personally as a guarantor, a term loan agreement
2 Chen v General Finance Ltd [2023] NZHC 1329 and Chen v General Finance Ltd [2023] NZHC 1758.
comprising a loan of $2.6m and a mortgage over the Property and other properties as collateral security in favour of GFL. The funds were advanced the same day. The loan was not repaid when it fell due on 4 February 2023. A default notice was issued by GFL on 7 February 2023, requiring the principal sum of $2.6m together with interest of $112,909.36. It also advised that default had to be remedied by 2 May 2023. It was not remedied.
[10] Shortly thereafter GFL issued notices under ss 119 and 122 of the Property Law Act 2007 (PLA) in respect of the Property and the other properties. Ms Chen then sought orders in this Court effectively to injunct these notices until her claim in separate proceedings were determined.3 In those separate proceedings she claimed among other things that GFL had acted oppressively and that GFL owes her
$9,650,000.4 Ms Chen’s application was dismissed, the Court finding that the interests
of justice did not favour an injunction and that in any event there was no serious issue to be tried.5
[11] Still further proceedings were commenced by Ms Chen claiming, among other things, that GFL did not have a caveatable interest in the Property. That claim was rejected as untenable.6
[12]Leave to appeal these matters has been declined.7
[13] On 11 June 2023, Mr Lau served a trespass notice, claiming that he had an interest in the property under a tenancy agreement with Ms Chen, pursuant to a separation deed executed on 9 June 2021 (“Separation Agreement”). It relevantly records the following under clause 4:
By way of settlement under negotiation with the help of family member, the following agreements reach for the properties under Ms Chen;
a) Mr Lau gave up all the equity of the properties owned by Ms Chen by way of cash settlement due to Mr Lau diagnosed to have problem of mental health issue of ADHD in 2018.
3 Chen v General Finance Ltd [2023] NZHC 1329.
4 Chen v General Finance Ltd HC Auckland CIV-2023-404-581.
5 Chen v General Finance Ltd [2023] NZHC 1329 at [44] and [48].
6 Chen v General Finance Ltd [2023] NZHC 1758 at [32].
7 Chen v General Finance Ltd [2023] NZHC 2157.above n 4.
b) Mr Lau will be granted tenancy/lease of all the properties owned by Ms Chen either owned by personal, Family Trust, Company for minimum from 25 to 35 years depending on the nature of the properties and future prospect of the properties.
c) Mr Lau suggested in favour of the lease/tenancy of all properties to be sustain to his 83 years old as the medium of New Zealand manage to be 81 as of the statistic in year 2020.
d) Mr Lau can lodge notice of claim or caveat an all the properties owned by Ms Chen either currently or in future.
e) Mr Lau continue assist Ms Chen to manage all her properties with the credit to be credited into the lease/tenancy of the individual property.
f) Ms Chen will cooperate to sign any lease/tenancy documents in separate documents within 48 hours notice from Mr Lau.
g) If any party die during the any period, the Children listed above only can took equal share of the properties and automatically inherent from either Mr Lau or Ms Chen.
[14] The tenancy agreement records that the tenancy shall commence on the 19th day of June 2021, for a fixed term, ending on 19 June 2056. It also records:
4.The rental derived from the ½ share equity under property relationship act 1976 (approx. $1,000,000.00) and the contribution of tenant for as consultant of ongoing subdivision process and labour contribution to the renovation of the property that at the amount of say $100,000.00.
5.This tenancy cannot be terminated within the tenancy period without consent from tenant.
6.Tenant will pay all outgoings of the property. Power, water and land rates.
7.Tenant had the first right to purchase the property.
[15] On 12 July 2023, the Property was sold at auction with settlement due to take place on 10 August 2023. That date has been extended to 17 August 2023.
Mr Lau’s caveat
[16] Mr Lau notes he lodged a caveat of the Property on 19 May 2023, but it was registered on 21 July 2023. He has also issued a notice of claim in respect of the property pursuant to the Property (Relationships) Act 1976. The caveatable interest claim has four parts:
(a)an interest based on a tenancy agreement;
(b)an interest based on a lease;
(c)an interest based on a sale and purchase agreement; and
(d)the notice of claim.
[17]The tenancy agreement is described at [14].
[18] The lease was provided in Mr Lau’s second affidavit and was signed by Ms Chen as landlord and Mr Lau as lessee. This affidavit was filed with the Court on 15 August 2023. The lease is dated 19 June 2021 and includes the following background and terms:
(i) Following the separation agreement dated 9.6.2021, the parties agreed the following lease terms at 9 Sunderlands Rd, Half Moon Bay, Auckland.
(ii) Due to part of the property-lounge and master bedroom used for Robotic training, and another room on the North west corner may be using for Robotic.
(iii) This Lease will be taken out of the specific area of the Robotic and the other tenancy agreement will take out the remaining area of the property and both Deed of lease and Tenancy agreement are prepaid until year 2056. The area of both Deed and tenancy interchangeable and can be varied from time to time without any notice.
(iv) The actual possession of the premises at 1.6.2021 and both Deed and tenancy to be signed no later than 19.6.2021 in order to avoid the litigation at Family Court that may file by Mr Lau
(v) Tenant allowed the landlord to do any further subdivision for the property with the new plan changed expected to be operative in year end 2022 and mid-year 2023.
(vi) Tenant must be fully co-operative and tenant is the consultant of the subdivision and will be doing the Job in husbandship manner while the fees will be included in the prepaid lease of tenancy.
(vii) This agreement to be private and confidential and not allow to be disclosed without approval of the other party to 3rd parties.
(1)Both parties agreed;
(a) The lease is prepaid lease up to 1.6.2056 with the final term yet to determine depending on the consultant fees that contribution by tenant in future.
(b) The tenant had contributed to the work hours to renovate the property, and contributed preliminary subdivision of the property that worth say $50,000.00 and the tenant will start paying expenses after the credit used up.
(c)The property will be as is what it is.
(d) Tenant liable for all the maintenance of the property and the expenses of the property with rates payment after the contribution of renovation and subdivision used up.
(e) Tenant pay Charges for water, gas, electricity, telecommunications and other utilities or services, including line charges.
(f)Tenant pay Rubbish collection and recycling charges.
(g) Tenant pay New Zealand Fire Service charges and the maintenance charges in respect of all fire detection and fire fighting equipment (if any)
(h) Tenant pay Any insurance excess (but not exceeding $2000) in respect of a claim and insurance premiums and related valuation fees.
(i) Tenant pay The cost of maintenance of lawns, gardens and planted areas including plant hire and replacement, and the cost of repair of fences.
(j) Tenant pay Yard and carparking area maintenance and repair charges but excluding charges for repaving or resealing.
…
(l) Any further terms in future can be negotiated thru both parties within 5 working days or mediation between both parties thru mediators within 10 working day notice from either party.
[19] The sales and purchase agreement dated 21 June 2021 in relation to the Property is signed by Ms Chen as vendor and Mr Lau as purchaser. The agreement addresses purchase price by way of special clause as follows:
Special clause between the vendor Liyun Chen as personal trustee and purchaser Ee Kuoh Lau – 9 Sunderlands Rd, Half Moon Bay.
(i)Both parties agreed the purchase price to be the cost 3.2million considering renovation minus down payment of
$800,000.00
(ii)The deposit to be the remaining terms of prepaid lease being
$40,000.00 per annum of remaining terms left at the time of sales.
(iii)All the terms of condition of the sales and purchase agreement must follow the separation agreement dated 9.6.2021
[20] The deposit for the agreement is recorded as “the remaining term of prepaid lease / tenancy 19.6.2021”. The date of settlement is said to be 120 days “after the agreement go unconditional”.
[21] Mr Lau explained that the agreements and lease were the outcome of a lengthy negotiation with Ms Chen who he says refused to let him take out his equity in the relationship property. He says the documents protect his interests in that property as:
(a)the tenancy enabled him to stay at the Property;
(b)the lease enabled future commercial use of the Property, including in association with the Robotics New Zealand (the association with robotics being a matter of considerable importance to Mr Lau and his children);
(c)the sale and purchase agreement enabled him to secure the property in the event that this became necessary in the future for whatever reason; and
(d)the notice of claim protected any claim he might have to any funds paid by GFL to Ms Chen.
Threshold
[22] The threshold principles for sustaining a caveat are well settled. As stated by the Court of Appeal in Philpott v Noble Investments Ltd:8
8 Philpott v Noble Investment Ltd [2015] NZCA 342 at [26]. See also Pacific Homes Ltd v Consolidated Joineries Ltd [1996] 2 NZLR 652 at 656-657; and Botany Land Development Ltd v Auckland Council [2014] NZCA 61, (2014) 14 NZCPR 813 at [24].
(a)The onus is on the applicants to demonstrate that they hold an interest in land that is sufficient to support the caveat, but they need not establish it definitively;
(b)It is enough if the applicants put for a reasonably arguable case to support the interest they claim;
(c)The summary procedures involved in applications of this nature are not suited to the determination of the disputed questions of fact. An order for the removal of a caveat will only be made if it is patently clear that the caveat cannot be maintained – either because there is no valid ground for lodging it in the first place, or because such a ground no longer exists; and
(d)When as applicant has discharged the burden upon it, the Court retains discretion to remove the caveat which it exercises on a cautious basis. Before it does so the Court must be satisfied that the caveators’ legitimate interest would not be prejudiced.
GFL’s claim
[23]GFL claims that (in short):
(a)The Separation Agreement does not satisfy the formal requirements for such agreements and is void at law — there is no evidence that the parties received independent legal advice and the execution of each party’s signature was not witnessed by a lawyer.9
(b)The Separation Agreement also lacks sufficient certainty of terms to be enforceable.
(c)While a tenancy agreement may in some limited circumstances amount to a caveatable interest,10 Mr Lau’s tenancy agreement is plainly a sham being one of multiple “tenancy” agreements with Ms Chen in relation to several properties.
(d)No copy of a lease or agreement to lease has been produced (at the time GFL filed its submissions) — but in any event, the registration of any lease must have the consent of a registered mortgagee.11
9 As required by the Property (Relationships) Act 1976 (PRA), s 21F.
10 Citing Waterhouse v Westpac NZ Ltd [2021] NZHC 1578 at [28]-[31]; and Jacques v Registrar General of Land [2022] NZHC 531 at [81].
11 Citing Land Transfer Act 2017, s 91.
(e)The sale and purchase agreement is so uncertain as to its terms that it could not give rise to an equitable interest.12
(f)As the sale and purchase agreement and tenancy agreement are tied to the Separation Agreement, which is void, the validity of those agreements must also be doubtful.
(g)None of the agreements were mentioned as part of the loan application and did not make an appearance until after the sale of the property by GFL.
(h)The various agreements together with the caveat registered against the Property forms part of a course of conduct by Ms Chen and Mr Lau to defeat GFL’s legitimate interests in securing repayment of the loan sums.
[24] GFL also refers to Mr Lau’s propensity to make illegitimate claims to caveatable interests, noting in particular the outcome in Goodmore Investments.13 GFL also submits that there is no real prejudice to the removal of the caveats because if Mr Lau has interests under the Separation Agreement, he has recourse to Ms Chen. By contrast, GFL submits there is significant prejudice to GFL if the caveats remain in place.
[25] Finally, GFL submits that as under s 103 of the Land Transfer Act 2017 (LTA) first registered mortgagee rights are unaffected by adverse claims by others that do not have priority over or bind the mortgagee. It is further noted that s 141 of the LTA provides that caveats against dealings do not prevent the transfer by a mortgagee under a power of sale where the interests protected (a) relate to the same estate or interest to which the mortgage relates and (b) arise under an unregistered mortgage or an agreement dated later than the date of registration of the registered mortgage. In these types of case, all that exists after a mortgagee has exercised its power of sale are the proceeds of sale which must be applied in accordance with the statutory provisions.14
12 Citing Bevin v Smith [1994] 3 NZLR 648, (1994) 6 TCLR 311, at 329-330.
13 Goodmore Investments (New Zealand) Ltd v Lau [2023] NZHC 1983.
14 Citing Jenssen v Jenssen CA 246/90, 13 December 1990.
Moreover, even if s 141 does not apply, a registered mortgagee’s title is paramount, including its right to exercise its power of sale.15 The effect of this is to render the caveat worthless, as after sale, there will likely be a shortfall in the range of $300,000.
[26] Overall, GFL submits, that the interests claimed by Mr Lau are based on the void Separation Agreement, and the interests conferred are so varied, interchangeable, and uncertain that there is no reasonably arguable basis for claiming they are caveatable. Moreover, to the extent the Court can find a legitimate interest in the myriad of claimed interests, the court may exercise its residual discretion to remove the caveat in any event for a first ranked mortgagee effecting a mortgagee sale, absent any circumstances which would justify their continuation.
Mr Lau’s response
[27] Mr Lau contests a number of background matters. He submits Ms Chen has always had a greater claim than GFL’s loan amount as detailed in an amended statement of claim dated 31 July 2023. He also claims that Ms Chen did not properly initial a key part of the loan document and moreover it needed translation before signing the letter of offer. Mr Lau also submits that the applicant misled Gordon J in Ms Chen’s proceeding, and that had Ms Chen been properly advised of the implications of the loan she would not have agreed to it. He submits that the refusal by GFL to remove a caveat from the Jeffs property meant that Ms Chen was effectively disabled from meeting her loan repayment obligation via the proceeds of sale of that property. Mr Lau further maintains that GFL’s improper caveating of other properties held by Ms Chen caused her significant loss.
[28]Turning to the issue of caveatable interest, Mr Lau submits that:
(a)he had warned GFL and the purchaser of his interest;
(b)he is an unsecured creditor of Ms Chen, who has greater claim than GFL;
15 Citing Cressida Capital One Ltd v Mapp [2013] NZHC 1666 and Gold Band Finance Ltd v Philpott [2015] NZHC 2383.
(c)the caveat should remain in place pending the resolution of Ms Chen’s claims;
(d)GFL was aware of Mr Lau’s interests at the time of the execution of the loan agreement; and
(e)the Separation Agreement, the tenancy agreement, and the lease form part of a legitimate scheme of arrangements to secure his interests in relationship property.
[29] In response to GFL’s reliance on s 103, Mr Lau emphasises that, in short, GFL breached the loan agreement and that Ms Chen’s corresponding claims well exceeds GFL’s rights under the loan. This includes claims in relation to other properties over which GFL lodged its own caveats and thereby improperly prevented Ms Chen from obtaining further finance. He therefore maintains that the caveat should be maintained pending the resolution of Ms Chen’s claim. He also responds to the claims by GFL that the Separation Agreement was not properly executed, noting that it was the product of a lengthy process and that there had been direct and indirect advice from various legal persons.
[30] Finally, he says that the caveat should be maintained so that he has a place to live with his children. He says that he has little income and there is no where else for him to live. He refers to the decision of Jaques v Registrar General of Land16 in which the Court sustained the caveat supporting a residential tenancy.
Assessment
[31] Prior to the execution of the loan agreement Ms Lau and Ms Chen, it appears, put in place an elaborate scheme of arrangements to give effect to the Separation Agreement. The effect of this scheme is to purportedly confer on Mr Lau a range of interests, including a long-term fixed tenancy, a leasehold, and a right to purchase the Property. That scheme of arrangements is very poorly documented. The Separation
16 Jaques, above n 10.
Agreement is void on its face because it is not witnessed by solicitors as required by s 21A of the PRA and it is uncertain. It states for example:
(i)“Mr Lau will be granted tenancy / lease”;
(ii)“owned by Ms Chen, either owned by personal, Family Trust, Company”;
(iii)“for minimum from 25-35 years ”; and
(iv)“depending on the nature of the properties and future prospect of the properties”.
[32] The tenancy, the sale and purchase agreement, and lease are all based on the agreements reached under the Separation Agreement. Their validity and enforceability must be therefore also doubtful. Their terms are also fluid and uncertain. The tenancy refers to “a future lease agreement … if the property allowed to subdivide for 9 lots after 1.1.2022 under new proposed plan”, while the lease also refers to “a final term yet to [be] determine[d]”. The tenancy also purports to be irrevocable without consent of the tenant. That is problematic given the rights, though limited, of landlords to terminate under the Residential Tenancies Act 1986. On this, status as a residential tenancy appears to be inconsistent with the proposed commercial lease of the premises. It is also not clear whether and when Ms Chen is purporting to bind herself as a Trustee or personally in respect of these arrangements. Therefore, overall, and bearing in mind also that agreements subject to a true condition’s precedent will not pass equitable title until the condition is waived or fulfilled, the creation of enforceable caveatable interests by these arrangements appears doubtful.
[33] There is also some weight in Mr Martin’s argument that the scheme of arrangements, raised by Mr Lau at the eleventh hour, have a sham like appearance. Indeed, an irrevocable residential fixed tenancy of 35 years duration, combined with a lease for the same duration and a contingent sale and purchase agreement concerning the same land, all immediately executed only months prior to the loan agreement, has all the hall marks of a scheme designed to prevent future adverse dealings with the
property. The fact that no notice was given by Ms Chen to GFL of these arrangements raises very serious doubts about the bona fides of these arrangements. As a minimum, it appears Ms Chen misled GFL as to the nature of her interests in the property. It also does not help Mr Lau’s cause that the proliferation of proceedings issued by him and Ms Chen to defeat GFL’s interests is matched only by the number of judgments dismissing them. But all of this goes to Mr Lau’s credibility, and this is not the proper forum, even on the poor state of the documentation, to resolve whether the scheme of arrangements is a sham.
[34] Moreover, even though I have very serious doubts for the reasons just expressed, I cannot say that it is inarguable that this scheme of arrangements, in one way or another, gives rise to a caveatable interest. A finer grained assessment of the arrangements in their full context is necessary. Put at its simplest, the residential tenancy, lease, and sale and purchase agreement appear to confer a right to a fixed tenancy, lease to purchase of the Property albeit reliant on the Separation Agreement and on specified events occurring. Arguably therefore, they confer a caveatable interest.
[35] The one respect in which Mr Lau’s claim for caveatable interest must fail relates to the notice of claim. The void Separation Agreement cannot sustain it. Moreover, Mr Lau identified that the purpose of the notice of claim was to ensure that he could claim his share of any pay out to Ms Chen by GFL. That is plainly an improper use of the caveat process and not sustainable.
[36] I turn then to examine whether I should exercise my limited discretion to remove the caveat in any event. On this I agree with Mr Martin that there is a fundamental problem with Mr Lau’s position. This scheme of arrangements was never brought to GFL’s attention prior to the execution of the loan. GFL is therefore a bona fide mortgagee without notice of Mr Lau’s asserted interests. A corollary of this is that Mr Lau’s interests have no priority over GFL’s or the purchaser’s interests, and therefore no automatic protection in respect of the registration of any transfer executed by GFL for the purpose of the exercise of its power of sale over the property.17
17 Cressida, above n 15 at [28].
[37]As Associate Judge Bell observed in Lepionka:18
On the exercise of sale by a mortgagee, the court may order the removal of a caveat, even though the caveator has a reasonably arguable case for the interest claimed in the caveat. The caveat is removed, not because there is not an interest in land under s 138, but because the mortgagee takes priority over that and the interest claimed will be extinguished under s 103 of the Land Transfer Act on the transfer of title:
103 Transfer of mortgaged land by mortgagee sale
(1)The estate or interest of a mortgagor in land vests in the purchaser of the land on registration of a transfer instrument executed by a mortgagee for the purpose of exercising a power of sale under a mortgage.
(2) The estate or interest transferred vests in the purchaser freed of and discharged from-
(a)liability under the mortgage; and
(b) any other mortgage or interest that does not have priority over the mortgage or that is not binding on the mortgagee.
[38] Associate Judge Bell went on to conclude in that case that while the caveator may arguably have an interest in the property, as that interest is not greater than the interest of the mortgagee, who had no notice of their interest, that interest stood to be extinguished under s 103 LTA.19 As the caveat served no purpose, it was removed.
[39] Mr Lau’s ongoing insistence that Ms Chen has claims that should be resolved first are hollow given that they have already been rejected by this Court and leave to appeal declined.
[40] Finally, Mr Lau’s plea that his caveat should be maintained because he has nowhere else to live is a matter I am able to treat with serious scepticism. As mentioned, the lodgement of caveat is one of multiple steps taken by Mr Lau and Ms Chen to defeat GFL’s rights as mortgagee, and on his own case, one of the reasons for the caveat is so he might be able to claim from any pay out by GFL to Ms Chen. As noted, that is plainly an improper use of the caveat regime. So, unlike the case in Jaques, I see no reason to maintain Mr Lau’s caveat to protect his tenancy beyond the statutory protections already afforded to him by the Residential Tenancies Act 1986.
18 Lepionka & Co Investments Ltd v Naldapat Ltd [2019] NZHC 1646 at [12].
19 At [65]-[75].
Indeed, while I have not found it necessary to resolve the residential tenancy claim on this basis, the scheme and policy of that Act as it relates to mortgagee rights provides the obvious vehicle for resolution of claims based on a residential tenancy, rather than the caveat regime. In this regard I agree with reasoning of Associate Judge Bell in Waterhouse20 to the effect that a tenant can derive no practical advantage from the sustaining of the caveat and instead is protected in their interests under the Residential Tenancies Act 1986. In this case, the tenancy may be terminated as if a periodic tenancy as stated at s 58(d) of that Act.
[41] In light of the foregoing and given the evidence that there will be nothing left to satisfy Mr Lau’s interests after sale is completed, whatever those interests are, I am satisfied I should remove Mr Lau’s caveat. However, the proper procedure for this, is to make an order for removal on the presentation of the transfer to the purchaser for registration.21
[42]There shall be an order removing the caveat accordingly.
[43] For completeness nothing I say here should be taken to suggest that I have found Mr Lau’s has established a legitimate residential tenancy or other interests in the Property. Those issues remain to be resolved.
[44] GFL are entitled to costs on a 2B basis together with disbursements to be fixed by the Registrar.
Postscript
At the end of the delivery of my judgment, Mr Martin also sought an order removing the notice of claim. Order accordingly for the removal of the notice of claim for the reasons stated in the judgment.
Whata J
20 Waterhouse, above n 10.
21 See DW McMorland and others Hinde McMorland and Sim Land Law in New Zealand (online ed, LexisNexis) at [10.020(d)].
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