Jeffries v Elliott

[2018] NZHC 295

IN THE HIGH COURT OF NEW ZEALAND

NAPIER REGISTRY

CIV-2017-441-114

[2018] NZHC 295

BETWEEN

RONALD WAYNE JEFFRIES

Applicant

AND

TRACEY CORINA ELLIOTT

Respondent

Hearing by AVL:	1 March 2018
Counsel:	Mr Jeffries in person and Mr M Bone as support person
Judgment:	1 March 2018

ORAL JUDGMENT OF ASSOCIATE JUDGE SMITH

[1]                 Mr Jeffries  filed  an  application  dated  6  December  2017  to  sustain caveat 8157254.1, registered over two certificates of title, numbers HBY1/577 and HBY1/578. The formal application bears the date stamp 21 December 2017 from the High Court in Wellington.

[2]                 Attached to the application was what  is  apparently a letter from  LINZ  to Mr Jeffries. The letter which has “13 Nov (10 days ago)” written on it, acknowledges receipt of notice that an application has been made to the Court to prevent the caveat from lapsing. The letter from LINZ went on to say:

I advise that the 28 day prescribed period expires on 7.12.2017. The caveat will lapse unless I receive copy of an order or an interim order from the Court on or before that date.

[3]                 It is immediately apparent that Mr Jeffries could not have filed the present application, which is dated 6 December 2017, before the 13 November letter from LINZ to which I have just referred.

JEFFRIES v ELLIOTT [2018] NZHC 295 [1 March 2018]

[4]                 When the case was called this morning, Mr Jeffries produced to the Registrar in Napier a copy of a letter dated 7 November 2017 from LINZ, in which LINZ referred to an earlier letter to it from Mr Jeffries dated 3 November 2017 “in response to the application made to [LINZ] to lapse caveat 8157254.1.” The 7 November letter from LINZ noted that Mr Jeffries had said that he would be “challenging the lifting of the caveat”.

[5]                 The letter from LINZ dated 7 November 2017 advised that Mr Jeffries’ letter of 3 November 2017 was insufficient, as LINZ required that written notice be received from the caveator that an application has been made to the Court to prevent the caveat from lapsing, as set out in s 145A of the Land Transfer Act 1952.

[6]                 Mr Jeffries had 14 days to advise LINZ that such an application had been filed in Court, and LINZ stated in its 7 November 2017 that the 14 day period would expire on 16 November 2017. Mr Jeffries was informed that if LINZ did not receive notice that an application to the Court had been made by that date, caveat 8157254.1 would lapse.

[7]                 Mr Jeffries confirmed to me at this morning’s hearing that no formal application to sustain his caveat was filed in a court before he filed his originating application for order that the caveat not lapse dated 6 December 2017. He also confirmed that no court order has been made sustaining the caveat on an interim basis.

[8]                 When a caveator such as Mr Jeffries receives a notice from LINZ that an application has been made to LINZ under s 145A1 to lapse the caveat, there are tight time limits within which the caveator must act to preserve his or her position. First, the caveator must file an application in the High Court for an order that the caveat is not lapsed. That must be done, and LINZ must receive notice that it has been done, within the period of 14 days from the LINZ notice to the caveator advising of the application made to LINZ that the caveat lapse.

[9]                 It appears in this case that Mr Jeffries was well out of time to get his Court application filed – according to the LINZ advice of 7 November 2017, the application

1      Section 145A of the Land Transfer Act 1952.

had to be filed in the High Court, with notice given to LINZ, by 16 November 2017. No application to the Court was filed until December 2017.

[10]              That would have been enough for me to decide that the present application cannot succeed, but even if Mr Jeffries had filed his application to sustain the caveat in the High Court by 16 November 2017, and advised LINZ by that date that he had done so, he then had a further period of only 28 days in which to obtain a Court order (whether interim or final) sustaining the caveat. In this case, no such order has been obtained, and the caveat has already lapsed.

[11]              I have explained to Mr Jeffries this morning that the Court does not have jurisdiction to extend the 14 day and 28 day timetable requirements, and that the result must be that his application is dismissed. I make an order accordingly.

[12]              I have this morning advised Mr Jeffries to take urgent legal advice. My decision this morning is only concerned with the failure to meet the timetable requirements relating to applications to sustain caveats. He may have valid claims (I have not considered them, and cannot say) that can be pursued through an ordinary legal proceeding, or otherwise as his solicitor might advise.

[13]              The application, then, is dismissed. It appears that it has not been served on the named respondent, so there is no issue as to costs.

Associate Judge Smith