Ismail v Saheb
[2018] NZHC 6
•17 January 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-000001 [2018] NZHC 6
UNDER the Land Transfer Act 1952 IN THE MATTER OF
Preserving a Caveat under section 145A of the Land Transfer Act 1952
BETWEEN
MOHAMMED ISMAIL Plaintiff
AND
FARZANA SOPHINA SAHEB and MUHAMMAD NADEEMSAHEB MUHAMMAD
Defendants
Hearing: 15 and 17 January 2018 Counsel:
P J Wright for the Plaintiff
R J Thompson for the DefendantsJudgment:
17 January 2018
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 17 January 2018 at 4.00 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Counsel : P J Wright, Auckland
R J Thompson, Auckland
Solicit ors : Andrew Seton Law Ltd (A M W Seton), Auckland
Thomas and Co (J M Gandy), Auckland
ISMAIL v SAHEB and MUHAMMAD [2018] NZHC 6 [17 January 2018]
Introduction
[1] The applicant applies for an order sustaining a caveat under s 145A of the Land Transfer Act 1952. The matter was called in the Duty Judge List on 15 January 2018 and the applicant sought an interim order sustaining the caveat pending the determination of the substantive application.
[2] The defendants raised an issue about whether the caveat may have already lapsed due to the application, and notification of the application to the Registrar- General, having been made a day after the expiry of the 14-day period. After hearing argument from both counsel, I reserved my decision on that question.
[3] On 16 January 2018, the applicant filed an application for leave to file a second caveat, in the event that I found that the first caveat had lapsed. In response to enquiries from the Registry, counsel for the defendants indicated that they intended to oppose the application.
[4] I convened a telephone conference with counsel on 17 January 2018 to discuss the best way to deal with that opposed application for leave to file a second caveat. In the course of that telephone conference, I made an interim order prohibiting the defendants from selling the property or otherwise dealing with it pending determination of the application for leave to file a second caveat.
[5] My reserved judgment on the question of lapse of the first caveat, and my reasons for making the interim order now follow.
Relevant statutory framework
[6] Section 145A(3) provides that a caveat lapses with the close of the “prescribed period” after the date on which the notice under subs (2) is given, unless a caveator gives notice to the Registrar-General of Land that an application for an order to the contrary has been made to the High Court. Under r 39 of the Land Transfer Regulations 2002, the “prescribed period” is 14 days.
[7] Section 35(6) of the Interpretation Act 1999 provides as follows:
35 Time
…
(6) A thing that, under an enactment, must or may be done on a particular day or within a limited period of time may, if that day or the last day of that period is not a working day, be done on the next working day.
[8] Under s 29 of the Interpretation Act 1999, a “working day” is defined to mean a day of the week other than those listed in the subsection. Those that are listed include a Saturday and Sunday, certain public holidays, and a day in the period commencing with 25 December and ending with 2 January in the following year. A day that the Court Registry is closed is not included as an exception to a working day.
[9] Rule 3.2 of the High Court Rules lists the court’s holidays. They include the period beginning on 24 December and ending on the close of 3 January.1 The court registry must be open on every day except a court holiday.2 As is apparent, there is a difference between a “working day” as provided for in the Interpretation Act 1999 and what constitutes a court holiday under the High Court Rules.
[10] The High Court Rules also provide for the computation of time. Under r 1.18, when the time for doing any act at a registry of the court expires on a day on which the registry is closed, the act is in time if it is done on the next day on which that registry is open. However, as is made clear by r 1.17(3), nothing in that rule effects the reckoning of periods of time fixed by the Limitation Act 1950 or other statutes, or the application of the Interpretation Act 1999.
When was the application to sustain the caveat filed?
[11] The Notice of Lapse from the Registrar General of Land was dated
11 December 2017. Counsel for the plaintiff advises that it was received by him on
13 December 2017.
[12] An attachment to the notice records that the time periods of 14 days and 28 days prescribed by the Land Transfer Act 1952 and the Land Transfer Regulations
1 High Court Rules 2016, r 3.2(1)(b).
2 Rule 3.1.
2002 include the public holidays over the Christmas-New Year period. The attachment states that to avoid the caveat lapsing, the applicant had to notify the Registrar-General before or on 3 January 2018 that an application to the relevant court had been made for an order that the caveat not lapse.
[13] The solicitor for the applicant attempted to file the application on the morning of 3 January 2018. However, that day was a court holiday and the Registry was closed. Accordingly, the application was filed on 4 January 2018, being the first day that the Registry was open. Later that day, the Registrar General of Land was advised that the application had been filed.
Was the application filed in time?
[14] Counsel for the applicant submits that the 14 days expired on a day which is not a working day due to it being a court holiday. Accordingly, the application and the notification of the application only had to be made on 4 January 2018. He submits that Parliament cannot have intended the 14-day period to be truncated due to the Court Registry being closed.
[15] I do not consider that the plain meaning of the statutory definitions can bear that interpretation. The Land Transfer Act is prescriptive in terms of the 14-day period. There is no statutory authority to alter that statutory period. Similarly, the definition of “working day” in s 29 of the Interpretation Act 1999 is explicit. I do not see any basis upon which to read “working day” as including a day when the Court Registry is closed when that is not expressly listed in either the Land Transfer Act 1952 or the Interpretation Act 1999.
[16] Therefore, I consider the application was filed outside the 14-day period and accordingly the caveat lapsed. In those circumstances, the application to sustain the caveat cannot be maintained and must be dismissed.
Should interim relief be granted pending determination of the application for leave to file a second caveat?
[17] In the event that I found that the first caveat had lapsed (as I have), the applicant filed an application for leave to file a second caveat.
[18] The application is opposed by the defendants. Counsel for the defendants indicates that they will be able to file a notice of opposition and affidavits in opposition by 9.00 am on Friday, 19 January 2018. Counsel for the plaintiff will file affidavits in response by 5.00 pm on the same day. It is estimated that a two-hour hearing will be required and both parties seek the allocation of an urgent hearing date.
[19] Counsel for the defendants advises that the defendants are facing a mortgagee sale and wish to take steps to sell the property as soon as possible. However, they have not taken steps to sell the property yet, and there is no impending sale.
[20] I granted interim relief restraining the defendants from taking any steps to sell the property or otherwise dealing with the property pending determination of the plaintiff’s application for leave to file a second caveat. I did so for the following reasons:
(a) First, the merits of the plaintiff’s application for leave to file a second caveat appear to be relatively strong. The time for filing the application was effectively truncated as a result of differences between the Interpretation Act 1999 and the definition of court holidays under the High Court Rules. The non-compliance was due to matters largely outside the plaintiff’s control.
(b)Second, there is little prejudice to the defendants in restraining them from dealing with the property, at least for a short period of time, given that they have not yet taken any steps to sell the property. (The Registry has since advised that the application can be listed for hearing next week. Accordingly, the restraint will only be in place for a short period of time).
(c) Third, there will be prejudice to the plaintiff if the property is sold
before he is able to argue his application to lodge a second caveat.
Result
[21] The application to sustain the caveat is dismissed.
[22] I make the following orders in relation to the plaintiff’s application for leave to file a second caveat:
(a) The defendants shall file a notice of opposition and affidavits in opposition by 9.00 am, Friday, 19 January 2018;
(b) The plaintiff shall file any affidavit in response by 5.00 pm, Friday,
19 January 2018;
(c) The application is listed for hearing at 11.45 am, Thursday,
25 January 2018;
(d)The defendants are restrained from selling or otherwise dealing with the property at 2A Golf Rd, Epsom, Auckland (Certificate of Title reference NA 52B/929) pending determination of the plaintiff’s
application for leave to file a second caveat.
Edwards J
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