HND Holding Limited v Lau

[2023] NZHC 1194

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2951

[2023] NZHC 1194

UNDER

Section 142 of the Land Transfer Act 2017

IN THE MATTER OF

an application for an order removing caveat no. 12790668.1 (North Auckland Registry)

BETWEEN

HND HOLDING LIMITED

Applicant

AND

EE KUOH LAU

Respondent

Hearing:	12 December 2023
Counsel:	R O Parmenter for the Applicant Respondent in person
Date of Judgment:	14 December 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 14 December 2023 at 4 pm Pursuant to Rule 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

Solicitors/Counsel:
R Parmenter, Auckland

Ganda & Associates, Auckland

HND HOLDING LTD v LAU [2023] NZHC 1194 [14 December 2023]

Introduction

[1]        This is an application by HND Holding Limited, as mortgagee, for an order removing a caveat from the title to a property that HND has sold exercising its power of sale. HND is prevented from completing settlement of the sale by a caveat lodged against the title by Mr Lau.

[2]        HND applied without notice for an order removing the caveat. I directed HND to proceed on a Pickwick basis. Mr Lau was served, and he appeared by VMR when this proceeding was called in the Caveats List on 12 December 2023. Mr Lau has since filed a notice of opposition, supporting affidavit from Jian Tan, and written submissions.

[3]        When the matter was called on 12 December 2023, the parties agreed that I should determine the matter on the papers, which I now do.

Background

[4]        HND holds a registered mortgage over the property at 18 Newington Road, Henderson, Record of Title Identifier NA902/189. The mortgagor and registered owner is Golden Circle Investment Limited.  HND’s  mortgage  was registered on  25 March 2022.

[5]        Golden Circle defaulted in its obligations to re-pay a loan to HND. HND has entered into a contract to sell the mortgaged property to a third-party, North Harbour Development Limited, in exercise of HND’s power of sale under the mortgage. Settlement of the sale to North Harbour Development Limited is scheduled to occur five working days after removal of Mr Lau’s caveat.

[6]        Mr Lau registered his caveat against the title to the property on 26 July 2023. Mr Lau’s caveat asserts the following equitable interests in the land:

(a)an interest as beneficiary under a constructive trust, where Golden Circle is constructive trustee;

(b)an interest as purchaser of the land under an agreement for sale and purchase dated 11 November 2022; and

(c)an interest as lessee of the land under a pre-paid lease of the property pursuant to which he is entitled to rent the property from 11 November 2022 until 11 November 2047.

[7]        HND seeks an order removing the caveat, under s 142 of the Land Transfer Act 2017, so that it can complete the sale of the property.

[8]        This is at least the fifth occasion on which Mr Lau has attempted to prevent a financier from exercising its power of sale under a mortgage. The present proceeding is very similar to:

(a)Goodmore Investments (New Zealand) Ltd v Lau,1 where Mr Lau lodged a caveat against a title to a property in Flat Bush claiming to have exactly the same interests as he claims in this proceeding; and

(b)the situation in HND Holding Ltd v Lau (CIV-2023-404-1500)2 and

HND Holding Ltd v Lau (CIV-2023-404-2761 and 2783).3

[9]        In Goodmore Investments, van Bohemen J held that the equitable interests asserted by Mr Lau were not sufficient to defeat the power of the mortgagee to sell the property using its power of sale under the mortgage. In HND Holding Ltd v Lau,

Lang J made an equivalent finding. 4

[10]      Ms Tan claims to be a representative of the mortgagor. She has sworn an affidavit, making allegations regarding the mortgagee sale process and the sale to North Harbour Development Limited. These are matters between the mortgagee and the mortgagor, and do not assist Mr Lau in sustaining his caveat.

1      Goodmore Investments (New Zealand) Ltd v Lau [2023] NZHC 1983.

2      HND Holding Ltd v Lau [2023] NZHC 2211.

3      HND Holding Ltd v Lau [2023] NZHC 3482.

4      HND Holding Ltd v Lau [2023] NZHC 2211.

[11]      HND has never had knowledge of the interests Mr Lau claims he holds in the mortgaged property, and has never consented to them. The caveat is an attempt by Mr Lau to derail the mortgagee sale process. The interests that he claims cannot prevent HND from exercising its power under the mortgage to sell the property following default by Golden Circle.

Result

[12]      I order that caveat number 12780856.1 (North Auckland Registry) be removed from Record of Title Identifier 909429.

[13]      Mr Lau shall pay costs to HND on a 2B basis, limited to the filing of the originating application and affidavit  in  support  and  .5  of  a  list  appearance  on  12 December 2023, plus disbursements as fixed by the Registrar.

Associate Judge Brittain