Lambert v Asteron Trust Services Limited

[2012] NZHC 3366

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-419-1626 [2012] NZHC 3366

UNDER  section 145A of the Land Transfer Act 1952

BETWEEN  ELIZABETH MARY LAMBERT Applicant

ANDASTERON TRUST SERVICES LIMITED Respondent

Hearing:         12 December 2012

Counsel:         No appearance on behalf of applicant

KA McLuskie for respondent

Judgment:      12 December 2012

Reasons:        12 December 2012

REASONSFOR JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application that caveat not lapse]

Solicitors:           Bell Gully, PO Box 4199, Auckland 1140 by their agent: Tompkins Wake, PO Box

258, Hamilton 3240

And To:             EM Lambert, 31a Bailey Street, Huntly

LAMBERT V ASTERON TRUST SERVICES LIMITED HC AK CIV-2012-419-1626 [12 December 2012]

[1]      I made orders this morning in the terms set out in [8] and [9] below.   I advised  counsel  that  I  would  record  my reasons.   This  judgment  records  those reasons.

[2]      The applicant applies for an order that Caveat No 8957345.1 not lapse.  The application was filed on 13 November 2012.   It was called before Potter J on 28

November 2012.

[3]      At  that  time,  because  the  application  had  not  been  served,  her  Honour adjourned the application to the chambers list today.   Her Honour noted in her minute that affidavits of service would need to be filed before that date.

[4]      No such affidavits of service were filed. The applicant has not appeared.

[5]      Ms McLuskie who appeared today on behalf of the respondent drew to my attention  a memorandum  signed  by counsel  for the respondent  and  the Official Assignee.  That memorandum makes reference to the caveat application and to the fact  that  the  applicant  was  adjudicated  a  bankrupt  on  28 May  2012.     The memorandum draws attention to s 101 of the Insolvency Act 2006.  That vests all the applicant’s property in the Official Assignee.

[6]      The caveat that is the subject of this application alleges that an interest was obtained in the subject property pursuant to a sale and purchase agreement.   The memorandum to which I have referred correctly observes that any rights under the sale and purchase agreement vest in the Official Assignee and not in the applicant.

[7]      The memorandum that has been filed is endorsed by the Official Assignee. The Official Assignee does not oppose the lapsing of the caveat.

[8]      In the circumstances, it is appropriate that I make two orders.  I order that: (a)          The application is dismissed; and

(b)      Caveat   No   8957345.1   lodged   over   the   property   contained   in

Certificate of Title NA81A/976 be removed from that title.

[9]      I reserve costs in view of the applicant’s insolvency position.

JA Faire

Associate Judge