Hokitika Property Limited v Hurt - [2014] NZHC 1536

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-00899 [2014] NZHC 1536

IN THE MATTER Of the Land Transfer Act 1952

IN THE MATTER

A Notice of Lapse of Caveat Dealing ID
9685495

BETWEEN

HOKITIKA PROPERTY LIMITED Applicant

AND

MARIA HURT in her personal capacity and as Executor of the Estate of David Hurt and Ulata Wendy Hurt, 32 O'Neil Street, Ponsonby, Auckland, occupations unknown

Respondent

Hearing: 17 June 2014

Appearances:

Mr A Speed for the Applicant
Mr E St John for the Respondent

Judgment:

3 July 2014

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
03.07.14 at 3 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

HOKITIKA PROPERTY LIMITED v HURT [2014] NZHC 1536 [3 July 2014]

Background

[1] The applicant, Hokitika Property Limited (“Hokitika”) has filed an originating application seeking an order under s 145A of the Land Transfer Act 1952 that caveat number 9678894.1 not lapse.

[2] On or about 21 March 2014, the applicant lodged a caveat against the title of a residential property at 32 O’Neil Street, Ponsonby. The registered proprietors are Maria Hurt, in her personal capacity and as executor of the estate of her late husband, David Hurt, together with their daughter, Ulata Wendy Hurt (to whom I shall refer to as “Wendy Hurt”). The ownership interest was split into thirds. Maria Hurt was registered as the proprietor for a one third share as executor and owned a one third share in her own right as did Wendy Hurt.

[3] The estate or interest claimed under the caveat states that it was filed on the following grounds:

The Caveator as purchaser pursuant to an agreement for sale and purchase of the property dated 17 March 2014 with the Registered Proprietor as vendor.

[4] On 2 April 2014, Land Information New Zealand wrote to the applicant, care of its solicitors advising that an application had been made by the respondents to lapse the caveat. Thereafter the applicant filed an application pursuant to s 145A of the Land Transfer Act which is now before the Court.

[5] The primary ground of opposition to the application is that there is no binding sale and purchase agreement. Alternatively the respondents say that:

a) damages would be an adequate remedy; and

b) the applicant has no particular interest in the respondents’ property

other than for profit.

[6] The brief background is that the respondents lived in the property at 32

O’Neil Street together with Wendy Hurt’s four children. Wendy is separated and is

said to be the primary breadwinner for the family. She is 36 years old and the children are aged eight, six, four and two. Maria Hurt is on a benefit.

[7] At the material time, the evidence is that the government capital valuation of the property was approximately $900,000. The applicant had also instructed a valuer who estimated the market value of the property to be $872,000.

[8] The property was subject…

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.

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Details

Case: [2014] NZHC 1536
Decision Date: 3 July 2014

CaseChat Overview and Summary

Hokitika Property Limited, the applicant, sought an order under section 145A of the Land Transfer Act 1952 to prevent the lapse of a caveat on a residential property located at 32 O’Neil Street, Ponsonby. The respondents, Maria Hurt in her personal capacity and as executor of the estate of her late husband, David Hurt, and their daughter, Ulata Wendy Hurt, opposed the application. The primary issue was whether a binding contract for the sale of the property had been established. The applicant argued that a contract was formed when the respondents signed an agreement for sale and purchase at $790,000, and subsequently, an increase in the price to $795,000 was proposed. The respondents, however, maintained that they did not accept the $795,000 offer and that no binding contract was formed. The court held that there was no binding contract as the acceptance of the initial offer at $790,000 was not effectively communicated to the applicant. The court further found that Mr Toilolo, who facilitated the agreement, did not have the authority to communicate acceptance on behalf of the respondents. Consequently, the application for an order to sustain the caveat was dismissed. The court also noted that the doctrine of part performance could not sustain the caveat as no contract existed to begin with. The parties were directed to confer on the question of costs.

Orders