Mira Sahib Company Limited v Saundercock

[2013] NZHC 46

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1256 [2013] NZHC 46

BETWEEN  MIRA SAHIB COMPANY LIMITED Applicant

ANDPAUL LINDSAY SAUNDERCOCK Respondent

Hearing:         4 February 2013 (Heard at Wellington)

Counsel:         Mr. J. Langford - Counsel for Respondent

No appearance for the Applicant

Judgment:      4 February 2013

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           G.E. Slevin, Solicitor, Insolvency and Trustee Service, Private Bag 4714, Christchurch 8140

Guy and Toby Manktelow, Barristers & Solicitors, PO Box 31-265, Lower Hutt

MIRA SAHIB COMPANY LIMITED V PL SAUNDERCOCK HC WN CIV-2012-485-1256 [4 February 2013]

[1]      In a judgment given in this Court on 11 September 2012 Associate Judge Doogue made an  order  sustaining  a  caveat  lodged  by the  applicant  against  the property of the respondent on certain conditions.   Those conditions included a requirement that the applicant was to commence proceedings to enforce such rights as it considers it has with respect to the property within 4 weeks of the date of that judgment.  The order was further conditional upon the applicant prosecuting those proceedings with reasonable expedition.

[2]      In this 11 September 2012 decision Associate Judge Doogue noted that if the applicant failed to comply with these conditions, the respondent could request to have the matter brought back before the Court so that the order sustaining the caveat could be discharged.

[3]      The respondent has now requested that this matter be brought back before the

Court.

[4]      As  I  understand  the  position,  the  sole  director  and  shareholder  of  the applicant company is Mr Mohammed Yunus Sahib (Mr Sahib) who was himself adjudicated bankrupt on 24 September 2012.

[5]      The applicant company, although not in liquidation, I am told is in the final stages of being struck off the register.  As I understand it, the company has no assets and no longer trades.  The sole director and shareholder of the applicant, Mr Sahib noted above, although an undischarged bankrupt, has confirmed to the Court that he now supports the removal of the caveat and no longer contends that it should remain on the respondent’s title.

[6]      In similar fashion, the Official Assignee who is now handling the estate of Mr Sahib, has filed a memorandum in this Court dated 29 January 2013 which confirms that, so far as the Official Assignee is concerned, the caveat should be allowed to lapse.  In particular the view is held and expressed that the applicant has an adequate remedy in damages.

[7]      And it does seem also that the original claim which is maintained under the caveat (for completion of a sub-division of the land in question) is acknowledged now as being quite unable to be pursued by the applicant for want of resources.

[8]      For all the reasons noted above, I am of the clear view that the caveat in question should now lapse and an order to this effect is required.  Clearly the strict conditions  upon  which  the  order  sustaining  the  caveat  made  by  His  Honour Associate Judge Doogue have not been complied with.

(a)       That said, an order is now made that caveat number 9055217.1 is to lapse effective immediately.

[9]      And before me, Mr Langford confirms there is no issue as to costs with respect to this matter. There will be no costs order here.

Associate Judge D.I. Gendall