Raglan Community Cultural Centre Trust v Simon HC Hamilton M226/01

[2001] NZHC 989

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY M226/01

BETWEEN (1) RAGLAN COMMUNITY CULTURAL CENTRE TRUST
(2) ANDRE MAKARINI TE WHEORO and KERRY MARIA TE WHEORO
Applicants

AND SOONEY SIMON
Respondent

Hearing: 17 October 2001

Counsel: K G Smith for Applicant
K L Peebles and P Jefferies for Respondent

Judgment: 18 October 2001

(ORAL) JUDGMENT OF MASTER J FAIRE

Solicitors:
Swarbrick Dixon, PO Box 19 010, Hamilton for applicants
O’Sheas, PO box 460, Hamilton for respondent

[1] There are two applicants.

[2] The first applicant is the caveator in respect of caveat number B.672721.1.

[3] This is an application pursuant to s 145 of the Land Transfer Act 1952 that caveat in B.672721.1 not lapse. The only applicant who has standing to bring the application is the caveator. The second applicant provides no basis for a claim to an interest in the caveat. They are not recorded as caveators. There is no description of an estate or interest in the land described in the caveat which is referable to them.

[4] Mr Smith could provide me with no basis in terms of ss 138 and 145 of the Land Transfer Act 1952 and Regulation 24 of the Land Transfer Regulations 1966, pursuant to which the second applicant could be treated as an applicant that this caveat not lapse. But for other reasons I would have simply ordered, at the conclusion of a judgment, that the application on behalf of the second applicants be dismissed.

[5] The first applicant registered a caveat against the title to the respondent’s land. It claims in that caveat:

“An estate or interest being an agreement to lease dated 31 March 1997 between Sooney Simon as lessor and the caveator as lessee.”

[6] The respondent opposes the application of the first applicant. There are three specific submissions advanced. For reasons which I will explain shortly, it is not necessary that I go into those submissions in this judgment.

[7] It is appropriate that I record that after hearing counsel I recalled them because of a concern I had as to whether the time limit set by s 145 of the Land Transfer Act 1952 had been met in this case. Section 145 of the Land Transfer Act 1952 provides:

“Except in the case of a caveat lodged by the Registrar in exercise of the powers by this Act given to him in that behalf, every caveat in Form N shall, upon the expiration of 14 days after notice given to the caveator that application has been made for the registration of any instrument affecting the land, estate, or interest protected thereby, be deemed to have lapsed as to that land, estate, or interest, or so much thereof as is referred to in the notice, unless notice is, within the said 14 days, given to the Registrar that application for an order to the contrary has been made to the [High Court], and unless such an order is made and served on the Registrar within a further period of [28 days].”

[8] The steps advised to me by counsel can be summarised as follows:

(a) Notice was served on the caveator by the District Land Registrar dated 4 September 2001 that an application had been made for the registration of an instrument affecting the interest protected by the caveat;

(b) Notice was given by the caveator to the District Land Registrar on 18 September 2001 that an application for an order to sustain the caveat had been made to the High Court.

[9] On the recall of counsel on 17 October, counsel advised me that a search of the Land Transfer office indicated that the time recorded for the registering of an order that a caveat not lapse was 18 October. It was not immediately obvious to me why that date applied. Twenty-eight days from 18 September would mean the expiry of time for registering the order that the caveat not lapse would occur on 16 October. If that indeed was correct, then the caveat would have already lapsed and it would be too late to make an order under s 145 of the Land Transfer Act. This situation arose because of counsel’s assumption that 18 October was the last day for registering an order that the caveat not lapse. It was the understanding, apparently, of counsel when the matter was called before Hammond J on 10 October when he made a fixture for the determination of this application before me on 17 October. No order was accordingly sought from Hammond J on 10 October that the caveat not lapse pending further order of the Court.

[10] I took the preliminary view yesterday that an order that the caveat not lapse should be made on an interim basis and that counsel should investigate the position to see if in fact the caveat had lapsed before my order had been made.

[11] Ms Peebles has confirmed the timetable I have set out earlier in this judgment for the steps that were taken and she, as did I, has located in the judgment of Quilliam J in Superior Homes Ltd v Bartlett & Oths [1974] 2 NZLR 122. That case is authority for the proposition that the 28 days is counted from the date of service of the notice of the application on the District Land Registrar. The result, then, is that if an order is not made and served on the District Land Registrar, in this case on or before 16 October, the caveat has in fact lapsed and it is too late to deal with it as an application under s 145 of the Land Transfer Act 1952.

[12] That, regrettably, is the position here. It is unfortunate because this situation arose, I have no doubt, because of a misunderstanding apparent to counsel when the matter was called before Hammond J on 10 October. Had the application been made for an interim order at that time, and His Honour been satisfied that one should have been made, this situation would not have arisen and this particular application may well have been dealt with on the merits.

[13] The application must, therefore, be dismissed, based on the timing problem that I have identified.

[14] Ms Peebles recognised that it would be unfair that any order for costs be made against the first applicants in these circumstances. Nevertheless, she made an application for costs against the second applications. That application is triggered, no doubt, by the finding I have earlier recorded in this judgment that the second applicants have no standing to seek the order that is sought in the application.

[15] I have reviewed carefully the affidavit evidence. Whilst I have considerable doubts as to whether, on the merits, I would have been justified in making an order in this case, I do not consider it is appropriate that any order for costs should be made. My reasons are as follows:

a) The respondent took a particular decision to adduce no evidence to the Court at all. There is evidence, particularly the affidavit of his sister, indicating that what was intended by him was a device simply to remove the trust and the second applicants from the property. He may well be justified in adopting that course.

b) The second matter that I take into account is that whilst the applicants may well have got the description wrong in the caveat which they lodged, there is, in my view, the very real possibility that they do hold some interest in the land. They had expended money on improvements to the land, with the express authorisation of the respondent. Photographic evidence that has been presented to me indicates considerable betterment to the buildings and general condition of the land.

[16] In these circumstances, I consider that justice would best be done by my dismissing the application, for the reasons I have already given, and by directing that there be no order for costs. I so order.