Khalesi v Lane - [2022] NZHC 787

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2015

[2022] NZHC 787

IN THE MATTER

AND
of the Land Transfer Act 1952

IN THE MATTER

of Caveat No.12091076.2 and Caveat No.12091076.1

BETWEEN

SAM KHALESI and SHAHIN KHAYAMI

Applicants

AND

LESLIE PHILLIP LANE

First Respondent

FAST PARK DEVELOPMENTS LIMITED

Second Respondent

Hearing: 23 February 2022

Appearances:

A Gilchrist for the Applicants CFL Godinet for the Respondents

Judgment:

13 April 2022

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 13 April 2022 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:
Churton Hart & Divers Ltd, Auckland Henley-Smith Law, Auckland

A Gilchrist, Auckland CFL Godinet, Auckland

KHALESI & ANOR v LANE & ANOR [2022] NZHC 787 [13 April 2022]

Introduction

[1] The applicants are seeking to sustain Caveats 12091076.2 and 12091076.1 registered over properties owned by the first respondent, Mr Lane, and the second respondent, Fast Spark Developments Limited, at 59 and 59A Ernie Pinches Street, Mt Roskill.

[2] The caveats record the applicants’ interest in the property as purchaser under a sale and purchase agreement entered into orally which has been partly performed.

[3] Section 24 of the Property Law Act 2007 requires a contract for the sale of land to be in writing and signed by the party against whom the contract is sought to be enforced. Section 26 of the Property Law Act however provides that s 24 does not affect the operation of the doctrine of part performance.

[4] The parties agree that there is no signed written agreement in this case. The applicants say however that they can rely on the oral agreement reached because it has been partly performed. The respondents submit that there was no concluded oral agreement and so the caveats ought to lapse.

[5] As this is a caveat application determined on a summary basis, the applicants only have to establish that their case is reasonably arguable to succeed in their application. The substantive determination of the applicants’ claim must await a full hearing.

Issues

[6]The issues are:

(a)Is it reasonably arguable that there was a concluded oral agreement?

(b)Is it reasonably arguable that there is part performance of that agreement?

(c)Is it reasonably arguable that it would be unconscionable in the circumstances for the respondents to rely on the Property Law Act requirement for the agreement to be in writing?

(d)If the answer to the above questions is yes, is there a caveatable interest as purchasers under the alleged agreement?

Caveat principles

[7]The parties agree on the legal principles applying to this application.

[8] In applications both to remove and sustain caveats under ss 142 and 143 of the Land Transfer Act, the onus is on the caveator to show a reasonably arguable case for the interest claimed.1

[9] The principles governing an application that a caveat not lapse are settled, with the Court of Appeal providing a helpful summary in Philpott v…

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 Khalesi v Lane

Details

AGLC: Khalesi v Lane [2022] NZHC 787
Case: [2022] NZHC 787
Decision Date: 13 April 2022

CaseChat Overview and Summary

The applicants, Sam Khalesi and Shahin Khayami, sought to sustain caveats over two properties owned by the first respondent, Leslie Phillip Lane, and the second respondent, Fast Spark Developments Limited. The applicants argued that they had a vested interest in the properties as purchasers under an oral agreement that had been partly performed. The respondents contended that there was no concluded oral agreement and that the caveats should therefore lapse. The High Court was required to determine whether it was reasonably arguable that an oral agreement existed, whether there had been part performance of the agreement, whether it would be unconscionable for the respondents to rely on the Property Law Act requirement for the agreement to be in writing, and whether there was a caveatable interest. The court found that it was reasonably arguable that an oral agreement had been reached, that there had been part performance of the agreement, and that it would be unconscionable for the respondents to rely on the requirement for the agreement to be in writing. The court also found that it was reasonably arguable that the applicants had a caveatable interest as purchasers under the alleged agreement. The caveats were not to lapse until further order of the Court. The applicants were entitled to costs, which were to be agreed upon by the parties or determined on the papers.

Orders