Pickens v Asteron Trust Services Limited

[2012] NZHC 3367

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-419-1629 [2012] NZHC 3367

UNDER  section 145A of the Land Transfer Act 1952

BETWEEN  JOSEPH WARREN PICKENS 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 caveats not lapse]

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

258, Hamilton 3240

And To:             JW Pickens, Oakura, 4 RD, Hikurangi

PICKENS V ASTERON TRUST SERVICES LIMITED HC AK CIV-2012-419-1629 [12 December 2012]

[1]      I made orders this morning in the terms set out in [7] and [8] below.   I advised  counsel  that  I  would  record my  reasons.   This  judgment  records  those reasons.

[2]      The applicant has applied for an order that Caveats numbered 8559038.1 and

8559089.1 not lapse.

[3]      The application was first called before Justice Potter on 28 November 2012. At that time her Honour allowed Ms Lambert to appear on behalf of Mr Pickens, the applicant.  Ms Lambert is not a person on the roll of barristers and solicitors.

[4]      Her  Honour  noted  that  the  application  had  not  been  served  and  that  an affidavit of service would be required.  Her Honour adjourned the application to the chambers list today.

[5]      The application was duly called.   Ms McLuskie appeared on behalf of the respondent who has filed a notice of opposition to the application.  No appearance was entered on behalf of the applicant.

[6]      I asked counsel for the respondent to check with the Land Transfer Office as to whether these caveats remained on the title having regard to the time limits prescribed by s 145A of the Land Transfer Act 1952.   Counsel’s research of that position indicated that the caveats were still on the title but that grounds for the Registrar to remove them existed as of yesterday.  That apparently arises from the fact that no order sustaining the caveats had been made within the time limit prescribed by s 145A of the Land Transfer Act 1952.

[7]      Be that as it may, as there was no appearance supporting the application I conclude that it should be dismissed.  The dismissal of an application to sustain a caveat, however, does not satisfactorily resolve the matter and, accordingly, I make a further order that Caveat 8559038.1 be removed from Certificate of Title 130488

(North Auckland Registry) and that Caveat 8559089.1 be removed from Certificate of Title NA81A/976.

[8]      Counsel did not specifically seek an order for costs, which I reserve in this case.  If appropriate the respondent may file and serve a memorandum seeking costs

and in the event that occurs specific directions dealing with that issue will be made.

JA Faire

Associate Judge