Sadiq v Ayer Properties Limited

[2005] NZCA 136

IN THE COURT OF APPEAL OF NEW ZEALAND

CA88/05

BETWEENMOHAMMED SADIQ & SHAMINA BEGUM

Appellants

ANDAYER PROPERTIES LIMITED

Respondent

Hearing:27 May 2005 (by telephone)

Court:Glazebrook, Hammond and O'Regan JJ

Counsel:J E Dorbu for Appellants

R O Parmenter for Respondent

Judgment:31 May 2005 

JUDGMENT OF THE COURT

A        THE APPLICATION FOR A STAY IS DECLINED.

B        Costs of $1,500, plus usual disbursements, are payable to the respondent.

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REASONS

(Given by Glazebrook J)

[1]       This was an application to stay execution of the judgment of Laurenson J, delivered in the High Court at Auckland on 20 May 2005, dismissing an originating application by the applicants dated 1 December 2004 that a caveat numbered 6207550.1 in the North Auckland Land Registry be sustained, pending the hearing of the appeal against that decision.

[2]       On 27 May 2005, we indicated that we would decline the application with reasons to be given later.  The reasons are as follows:

(a)The only relief sought in the proceedings related to the sale and purchase agreement is damages.  That relief is not affected by the maintenance or otherwise of the caveat;

(b)It does not appear to us, on the material currently before us, that there is a caveatable interest that would justify the caveat.  The agreement for sale and purchase between the parties does not appear to be still on foot, either because the agreement has been validly cancelled by the respondent or because the respondent’s repudiation has been accepted by the appellant;

(c)Any order or agreement that the caveat be sustained until resolution of the issues between the parties cannot survive where there is no interest capable of sustaining it;

(d)The Consent Order of 23 February 2005 on its face expired on 5 April 2005 when settlement did not take place by that date.  There is therefore no subsisting order for specific performance.

[3]       We order costs of $1,500, plus usual disbursements, in favour of the respondent.

[4]       If the substantive appeal proceeds we consider that it should be listed before a differently constituted Court.

Solicitors:
Murdoch Hall & Co, Auckland, for Appellants
Graham & Co, Auckland, for Respondent