HND Holding Ltd v Lau
[2023] NZHC 3482
•1 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-2761
[2023] NZHC 3482
UNDER Section 142 of the Land Transfer Act 2017 IN THE MATTER OF
an application for an order removing caveat 12780856.1 (North Auckland Registry)
BETWEEN
HND HOLDING LIMITED
Applicant
AND
EE KUOH LAU
Respondent
CIV-2023-404-2783 IN THE MATTER OF
an application for an order removing caveat 12780903.1 (North Auckland Registry)
BETWEEN
HND HOLDING LIMITED
Applicant
AND
EE KUOH LAU
Respondent
Hearing: 29 November 2023 Counsel:
R O Parmenter for the Applicant Respondent in person
Judgment:
1 December 2023
JUDGMENT OF ASSOCIATE JUDGE BRITTAIN
Solicitors/Counsel:
This judgment was delivered by me on 1 December 2023 at 12 midday Pursuant to Rule 11.5 of the High Court Rules.
…………………..
Registrar/Deputy Registrar
R Parmenter, Auckland
Ganda & Associates, Auckland
HND HOLDING LIMITED v LAU [2023] NZHC 3482 [1 December 2023]
Introduction
[1] These two proceedings are applications by HND Holding Limited (HND), as mortgagee, for an order removing caveats from the titles to two properties that HND has sold exercising its power of sale. HND is prevented from completing settlement of the sales by caveats lodged against the two titles by Mr Lau.
[2] HND applied without notice for orders removing the caveats. I directed HND to proceed on a Pickwick basis. Mr Lau was served, and he appeared when these proceedings were called in the caveats list on 28 November 2023. Mr Lau has filed a memorandum setting out his grounds of opposition, and two affidavits. The applications were heard together on 29 November 2023. Mr Lau appeared. Pursuant to my direction, Mr Lau subsequently filed further written submissions dated 29 November 2023.
Background
[3]HND holds a registered mortgage over the following properties:
(a)205 Sutton Road, Drury, owned by DASP Properties Limited (DASP). The mortgage was registered against the title to the property on 23 July 2021.
(b)419 Bremner Road, Karaka, owned by Daniel Kwok Properties Limited (DKP). The mortgage was registered against the title to the property on 3 August 2021.
[4] Mr Lau registered his caveat against the titles to both properties on 12 July 2023.
[5] DASP and DKP are companies controlled by Daniel Kwok. The mortgages are related to other advances and securities between HND and Mr Kwok, or companies that he controls.
[6] DASP and DKP defaulted in their obligations to repay loans to HND. HND has entered into a contract to sell the properties to a third party, Joe Holdings
Limited (Joe Holdings), using its power of sale under the mortgages. It is currently prevented from completing settlement of the sales because Mr Lau has lodged caveats against the titles to the properties, based on the following asserted equitable interests in the land:
(a)an interest as beneficiary under a constructive trust, where DASP or DKP is constructive trustee;
(b)an interest as purchaser of the land under an agreement for sale and purchase dated 8 June 2021; and
(c)an interest as lessee of the land under a pre-paid lease of the properties pursuant to which he is entitled to rent the properties from 8 June 2021 until 8 June 2041.
[7] HND seeks an order under s 142 of the Land Transfer Act 2017 that the caveats be removed so it can complete the sale of the properties. Settlement of the sales is to take place five working days after the caveats are removed.
[8] The secured advance now exceeds $19 million. This debt is secured over several properties. Given the size of the debt, interest is accruing at a significant rate.
[9] This is at least the fourth occasion on which Mr Lau has attempted to prevent a financier from exercising its power of sale under a mortgage. The present proceedings appear to be 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 these proceedings; and
(b)the situation in HND Holding Ltd v Lau (CIV-2023-404-1500).2
[10] 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
1 Goodmore Investments (New Zealand) Ltd v Lau [2023] NZHC 1983.
2 HND Holding Ltd v Lau [2023] NZHC 2211.
property using its power of sale under the mortgage. In HND Holding Ltd v Lau, Lang J made an equivalent finding.
[11] Mr Lau has sworn an affidavit, making allegations that the sales to Joe Holdings are not bona fide. There is no supporting evidence, other than Mr Lau’s bare assertion. Other matters raised by Mr Lau relate to matters between the mortgagee and the mortgagors, and do not assist Mr Lau in sustaining his caveat.
[12] Mr Kwok has also sworn an affidavit. He says that Mr Lau is the assignee of the benefit of the mortgaged properties. This does not assist Mr Lau because it does not alter the priority of registered interests. In addition, Mr Kwok complains about matters between the mortgagee and the mortgagors, but none of those matters are relevant to Mr Lau’s caveats.
[13] The directors of HND have never had knowledge of the interests Mr Lau claims he holds in the mortgaged properties and have never consented to them. The caveats are 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 mortgages to sell the properties following default by DASP and DKP.
Result
[14] I order that caveat number 12780856.1 (North Auckland Registry) be removed from Record of Title Identifier 909429.
[15] I order that caveat number 12780903.1 (North Auckland Registry) be removed from Record of Title Identifier NA82B/163.
[16]Mr Lau shall pay costs to HND in respect of each proceeding:
(a)for CIV-2023-404-2761, on a category 2B basis in the sum of
$10,874.50 plus disbursements of $590; and
(b)for CIV-2023-404-2783, on a category 2A basis in the sum of $2,868 plus disbursements of $590.
Associate Judge Brittain
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