Holloway v Andrew HC WN CIV 2008-485-1091
[2008] NZHC 2385
•30 June 2008
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2008-485-1091
IN THE MATTER OF Section 145 of the Land Transfer Act 1952
AND
IN THE MATTER OF Caveats 7706739.1 and 7706739.2 (Wellington Registry)
BETWEEN GEORGE DOUGLAS JAMES GRANT HOLLOWAY
Plaintiff
ANDGRAHAM JOHN ANDREW AND MAHIA HATHAWAY FARLEY AS TRUSTEES OF THE FLATPAX FAMILY TRUST
Defendants
Hearing: 30 June 2008
Appearances: D. Holloway - Plaintiff
No appearance - Defendants
R. Gordon - BNZ (Intervenor) Judgment: 30 June 2008
ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL
Solicitors: D. Holloway, Solicitor, 40 Oroua Street, Eastbourne
Buddle Findlay, Solicitors, PO Box 2694, Wellington
GDJG HOLLOWAY V GJ ANDREW AND MH FARLEY AS TRUSTEES OF THE FLATPAX FAMILY TRUST HC WN CIV 2008-485-1091 30 June 2008
[1] Before the Court are two matters:
a) An application for orders that caveats not lapse brought by the plaintiff Mr Holloway.
b)An application by the Bank of New Zealand to intervene in the proceedings and for orders varying an Interim Order of this Court dated 10 June 2008 preserving the caveats in question.
[2] As a preliminary matter counsel advise that the earlier Interim Order of this Court preserving the two caveats in question granted by His Honour Associate Judge Abbott is effectively now in place only so far as the second caveat No. 7706739.2 registered against certificate of title WN21A/669 is concerned. This is over a property at 4 Holland Grove, Avalon, Lower Hutt.
[3] The first caveat No. 7706739.1 which was registered over a property at 17
Cottle Street was withdrawn by the plaintiff on Thursday of last week.
[4] So far as the extant application for an order that the second caveat No.
7706739.2 not lapse is concerned, these proceedings have been served upon one of the defendant registered proprietors, Ms Farley but they have not been served upon the other defendant, Mr Andrew.
[5] An oral application was made before me today by Mr Holloway for substituted service upon Mr Andrew. An order is now made by way of substituted service that these proceedings are to be served upon the first-named defendant Graham John Andrew by the plaintiff affixing a copy of the relevant documents to the front door of the dwelling at the property at 4 Holland Grove, Avalon, Lower Hutt. Service in this manner is deemed to be appropriate service on Mr Andrew.
[6] In addition, with regard to the substantive application for an order that the caveat not lapse, at the request of Mr Holloway, the plaintiff, this matter is adjourned to a call on 7 July 2008.
[7] So far as the second application by the Bank of New Zealand noted at paragraph [1](b) above is concerned, effectively this is unopposed by the plaintiff. An initial order is now made granting leave to the Bank of New Zealand to intervene in these proceedings.
[8] A further order is also made (again effectively unopposed by the plaintiff)
that the interim order of this Court dated 10 June 2008 in so far as the property at 4
Holland Grove, Avalon, Lower Hutt is concerned is now varied by adding to the form of the order as sealed the following words:
“Provided that this order shall not prevent removal of the registration of caveat 7706739.2 (in relation to the property at 4 Holland Grove, Avalon, Lower Hutt as contained in certificate of title WN21A/669) upon the registration of a transfer in exercise of power of sale by Bank of New Zealand under its first registered mortgage in respect of the relevant property.”
[9] Costs are sought by the applicant Bank of New Zealand on its application to intervene. So far as these are concerned, the application is opposed by the plaintiff. At this point costs are reserved.
[10] If the parties are unable to reach agreement on this issue of costs and/or if the costs question remain outstanding, leave is reserved for either party to approach the Court on 2 days notice to have the Court resolve the issue of costs on the BNZ application.
‘Associate Judge D.I. Gendall’
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