Logmao v Valdrez - [2016] NZHC 315

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2727 [2016] NZHC 315

UNDER the Land Transfer Act 1952

IN THE MATTER OF

Caveat no.10202257.1

BETWEEN

MA CHRISTINE ROXANNE LOGMAO Applicant

AND

JUAN VALDREZ AND ROSCELI VALDREZ

Respondents

Hearing: 18 February 2016

Appearances:

A Gilchrist for Applicant
S G Rhind for Respondents

Judgment:

1 March 2016

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 1 March 2016 at 4:00pm
Pursuant to Rule 11.5 of the High Court Rules

…………………………………………………….
Registrar/Deputy Registrar

Solicitors:
R J Burton, Papakura, for Applicant
Rice Craig, Papakura, for Respondents

Counsel:
Andrew Gilchrist, Auckland, for Applicant

LOGMAO v VALDREZ [2016] NZHC 315 [1 March 2016]

[1] The applicant applies under s 145A of the Land Transfer Act 1952 for an order sustaining caveat 10202257.1 lodged against the title to the property at 8A Nelson Street, Papakura, Auckland, a cross lease title, Lot 6 DP17400 identifier NA66B/947. The interest claimed in the caveat is “as purchaser pursuant to an agreement to purchase dated 20/12/2012”. The caveat was lodged on 25 September
2015.

[2] The applicant and her husband are Filipinos who migrated to New Zealand. The respondents are also Filipinos who migrated to New Zealand, but they have now moved to South Australia. In 2012 they were neighbours. The respondents owned the property at 8A Nelson Street, Papakura. The applicant and her husband lived next door at 10B Nelson Street. The respondents moved to Australia at the end of
2012. Before they left, they entered into a rent to own contract with the applicant. She relies on that agreement to claim her interest under the caveat. In opposition to the caveat application the respondents say that she did not exercise her rights under the agreement in time. They have given her notice requiring her to leave the premises.

[3] In applications to sustain caveats under s 145A of the Land Transfer Act, the caveator has the onus of showing a reasonably arguable case for the interest claimed. The interest must come within s 137(1) of the Act. A personal or contractual right is not enough: the caveator must show an entitlement to or beneficial interest in the land in the caveat. Something more than a potential interest is required. Caveat applications are summary and therefore not suited for deciding disputed questions of fact. On the other hand the court is not required to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement in an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be. For a caveat to lapse it must be patently clear that the caveat cannot stand because there was no ground for lodging it at the time it was lodged or because any such ground no longer exists. The court has a residual discretion not to uphold a

caveat but that is exercised cautiously, as…

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.

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Details

Case: [2016] NZHC 315
Decision Date: 1 March 2016

CaseChat Overview and Summary

In this case, the applicant, Christine Roxanne Logmao, sought to sustain a caveat lodged against a property at 8A Nelson Street, Papakura, Auckland, under s 145A of the Land Transfer Act 1952. The property was owned by the respondents, Juan and Rosceli Valdrez, who had entered into a rent to own contract with the applicant in 2012. The applicant claimed an interest in the property as a purchaser under the agreement. The respondents opposed the caveat application, arguing that the applicant had not exercised her rights under the agreement in time and had given notice requiring her to leave the premises. The court was required to decide whether the applicant had a reasonably arguable case for the interest claimed and if the caveat could be sustained.

The court found that the agreement between the parties was a lease with an option to purchase, rather than a long-term agreement for sale and purchase. The court also found that it was arguable that the option to purchase applied to both the applicant and her husband, as they had entered into the agreement as a family. The court further found that it was arguable that the applicant had exercised the option to purchase within the time allowed under the agreement. As a result, the court held that the caveat should not be removed at that point.

The court made orders that the caveat would not lapse pending further order, the applicant would be required to promptly start a proceeding against the respondents to enforce the option to purchase and to obtain specific performance, and that the respondents would pay the applicant's costs on a category 2 basis. The court also reserved leave to the respondents to review whether the caveat should continue if the applicant did not comply with the condition to prosecute the claim expeditiously.

Orders