Hemmingson v Rod - [2014] NZHC 873

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2013-454-454 [2014] NZHC 873

UNDER the Land Transfer Act 1952

IN THE MATTER OF

an application to prevent a caveat lapsing

BETWEEN

ROBERT NEILL HEMMINGSON Plaintiff

AND

STEVEN ROD and THE CLANARD PROPERTY TRUST COMPANY LTD Defendants

Hearing: 18 March 2014

Counsel:

G A Paine for plaintiff
P J Morahan for defendants

Judgment:

30 April 2014

Reissued:

4 June 2014

RECALLED AND RE-ISSUED

RESERVED JUDGMENT OF ASSOCIATE JUDGE SMITH

Contents

The plaintiff ’s claim to an interest in the land ................................................................................ [9] The Dispute ...................................................................................................................................... [42] The Application ............................................................................................................................... [51] The Opposition ................................................................................................................................ [52] Discussion - Legal Principles ......................................................................................................... [53] Application of legal principles in this case .................................................................................... [55]
Costs ................................................................................................................................................. [81]

HEMMINGSON v ROD and THE CLANARD PROPERTY TRUST CO LTD [2014] NZHC 873 [30 April 2014]

[1] On 30 April 2014 I delivered a reserved decision in this matter, in which I granted leave to the plaintiff to file a second caveat. At a telephone conference with counsel on 3 June 2014 I made an order recalling that judgment, so that the wording of the order relating to the lodging of the second caveat could be corrected. The corrected working now appears at paragraph [80] of this (re-issued) judgment, which in all other respects is in the same terms as the judgment delivered on 30 April 2014.

[2] The plaintiff applies under s 145A of the Land Transfer Act 1952 for an order that a caveat lodged by him on certificate of title WN38C/726, Wellington Land District, does not lapse (the Application).

[3] The land in question is the site of the Foxton Hotel in Foxton. The plaintiff was, for some years prior to June 2011, the publican at the hotel. Between February
2006 and July 2007, the plaintiff and Cullinane Steele Trustees (2003) Limited were registered as proprietors of the land. From 23 July 2007 until 19 July 2011, the registered proprietors were the plaintiff and Cheryl Marie Hemmingson. The registered proprietors throughout the period from February 2006 to 19 July 2011 appear to have been trustees of family trusts established by or associated with the plaintiff.

[4] Following registration of the 2007 transfer to the plaintiff and Ms Hemmingson, two mortgages were registered against the title to the land: a first mortgage (no 7464244.3) to Avanti Finance Limited (Avanti), and a second mortgage (no 7466093.1) to John Stanford Davis and Faye Beryl Davis (the first Davis mortgage).

[5] The plaintiff ran into financial difficulties and was bankrupted on the application of the Inland Revenue Department on 15 October 2007. However, the Foxton Hotel continued in business. Initially the business was run by a tenant, Foxton Hotel Limited. Following the liquidation of that company on 28 March
2008, the hotel was operated by a manager, with the plaintiff and his partner providing support. According to a valuation report prepared for Avanti on 2 August
2010, there was not, at that time, any formal lease in place. Trade…

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 Hemmingson v Rod

Details

AGLC: Hemmingson v Rod [2014] NZHC 873
Case: [2014] NZHC 873
Decision Date: 30 April 2014

CaseChat Overview and Summary

In this case, the plaintiff sought to prevent a caveat from lapsing. The plaintiff claimed an interest in the land by virtue of a constructive trust to purchase the land from the mortgagee under mortgage number 8806440.2 on behalf of the caveator. The defendants argued that the caveat should be allowed to lapse as it was deficient in describing the plaintiff's interest in the land with sufficient certainty. The court found that while the plaintiff may have an arguable claim to an interest in the land, the claim had not been described in the caveat in a manner which complied with the mandatory requirements of the Land Transfer Act 1952. However, the court found that this was a proper case for leave to be granted to the plaintiff to file a second caveat, as the application had failed solely because of technical deficiencies in the description of the interest in the caveat. The court granted leave to the plaintiff to lodge a second caveat on the property, subject to certain terms and conditions. The issue of costs was not argued at the hearing and the defendants were entitled to apply for costs within 14 days of the date of the judgment.

Orders