Katu v Seth - [2021] NZHC 416

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1919

[2021] NZHC 416

UNDER the Land Transfer Act 2017, section 143

IN THE MATTER OF

an originating application for an order that a caveat do not lapse

BETWEEN

VICKI ANN KATU

Applicant

AND

ANMOL SETH

Respondent

Hearing: 8 March 2021

Appearances:

G Stringer and A M Mahoney for the Applicant J Duckworth for the Respondent

Judgment:

8 March 2021

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Sutcliffe Matson (Braden Matson), Auckland, for the Applicant
Jennifer G Connell & Associates (James Duckworth), Newmarket, for the Respondent

Copy for
Greg Stringer, Inder Lynch, Auckland, for the Applicant

KATU v SETH [2021] NZHC 416 [8 March 2021]

[1] Vicki Katu applies to sustain caveat 11545722.1 lodged against the record of title NA1008/119 for the residential property at 185 Gray Avenue, Papatoetoe, Auckland. Anmol Seth, the respondent, is the registered proprietor.

[2]The interest claimed in the caveat is:

Fee simple estate the caveator Vicki Ann Katu as one of the vendors by virtue of an agreement for sale and purchase dated 15 October 2014 and Anmol Seth as purchaser and as registered owner.

The caveat was lodged on 9 September 2019. Ms Katu has not yet begun any substantive proceeding to sustain the interest claimed in that caveat. She amended her application in November 2020 to also seek an order under s 146 of the Land Transfer Act 2017 to lodge a second caveat in case the court ordered the first one to be removed. Under her back-up application, she wishes to claim a caveatable interest as a beneficiary under an institutional constructive trust.

Principles on caveat applications

[3] In a Court of Appeal case, Holt v Anchorage Management Ltd, McMullin J stated the purpose of a caveat against dealings under the Land Transfer Act 1952. He said:1
Once lodged, a caveat is notice to all who search the title to the land against which it is registered and to the registered proprietor of the land (to whom notice of its receipt is given pursuant to s 142) that the caveator claims the estate or interest the subject of the caveat. It is both a warning to the persons mentioned that the caveator asserts rights against the land and a protection of those rights. (Section 143(1) uses the phrase "protected by the caveat"). Once the caveat is lodged the Registrar is prohibited from making any entry on the register which has the effect of charging or transferring or otherwise affecting the estate or interest protected by the caveat (s 141).

1 Holt v Anchorage Management Ltd [1987] 1 NZLR 108 (CA) at 113.

[4] Although the Holt case was decided under the Land Transfer Act 1952, that statement equally applies to caveats under the Land Transfer Act 2017. The 2017 Act applies in this case, as the caveat was lodged after the 2017 Act came into force.2

[5] In caveat applications…

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.

Continue reading Katu v Seth

Details

AGLC: Katu v Seth [2021] NZHC 416
Case: [2021] NZHC 416
Decision Date: 8 March 2021

CaseChat Overview and Summary

Vicki Katu applied to sustain a caveat against the record of title for the residential property at 185 Gray Avenue, Papatoetoe, Auckland. The registered proprietor, Anmol Seth, opposed the application. Katu claimed a fee simple estate in the land as one of the vendors by virtue of an agreement for sale and purchase dated 15 October 2014. Katu also sought an order to lodge a second caveat under s 146 of the Land Transfer Act 2017 to claim a caveatable interest as a beneficiary under an institutional constructive trust. The court had to determine whether Katu had a reasonably arguable case for the interest claimed in the caveat and if the caveat could be sustained. The court held that Katu did not have a caveatable interest in the property under either basis. The interest claimed in the caveat was not sufficient to give an interest in the land, and an institutional constructive trust could not arise as the transfer of property to Seth was effective. Therefore, the court dismissed Katu's application, and the caveat must be removed from the title. Seth is entitled to costs on a 2B basis.

Orders