Singh v Baby HC Auckland CIV 2011-404-005722

[2011] NZHC 1450

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-005722

IN THE MATTER OF     Section 145a of the Land Transfer Act 1952

AND IN THE MATTER OF Caveat 8514547.1

BETWEEN  JASBIR SINGH, TEJPAL SINGH BAINS AND HARJINDER KAUR AS TRUSTEES OF T J TRUST Plaintiff/Applicant

ANDBABY BABY, GURMINDER KAUR NIJJAR, HARPAL SINGH NIJJAR AND SAMPURAN SINGH AS TRUSTEES OF NIJJAR FAMILY TRUST Defendant/Respondent

Hearing:         27 October 2011

Appearances: S Singh for the Plaintiff/Applicant

D G Smith for the Defendant/Respondent

Judgment:      27 October 2011

ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

Solicitors/Counsel:

S Singh, Singh Lawyers, Auckland – [email protected]

D Smith, Barrister, Auckland –  [email protected]

JASBIR SINGH, TEJPAL SINGH BAINS AND HARJINDER KAUR AS TRUSTEES OF T J TRUST V BABY BABY, GURMINDER KAUR NIJJAR, HARPAL SINGH NIJJAR AND SAMPURAN SINGH AS TRUSTEES OF NIJJAR FAMILY TRUST HC AK CIV 2011-404-005722 27 October 2011

[1]      The plaintiff (T J Trust) has applied for an order that the trust‟s caveat over the defendant‟s property not lapse.  The plaintiff‟s application claims it lent and the defendant  borrowed  the  sum  of  $67,278.13  “for  subdivision  to  the  property registered in the name of [the defendant]”.  The plaintiff claims the parties verbally agreed that as security for the lending the T J Trust had an option to lodge a caveat against the defendant‟s title „upon full payment not being made‟.

[2]      The T J Trust claims that no repayments in reduction of its debt have been made. The affidavits filed in opposition to the application assert:

(a)      T J Trust‟s loan was advanced to Mr Harpal Singh in person and not to the trust which owned the property over which the caveat was registered.

(b)      That there was never any agreement that the T J Trust could caveat to

the defendant‟s property.

(c)      The T J Trust agreed by way of deed dated 20 January 2011 to remove its caveat.

(d)      The advance of $67,000 has been repaid.

[3]      Further affidavits for each side contested the claim about whether there was any agreement that the defendant‟s property could be caveated, or that by deed it was agreed the caveat would be removed; or that the advance was repaid.  There were allegations that the deed of agreement to remove the caveat was a forgery; that claims of witnessing the repayment of the advance were a lie.

[4]      The loan arrangement was an inter-family one.   Mr Jasbir Singh (Jasbir) is one of the trustees of the T J Trust.  The defendants are the Nijjar Family Trust of which Mr Singh‟s wife is a trustee.  Of that trust Mr Harpal Singh Nijjar (Harpal) is the primary trustee.  The defendant owns a property at Papatoetoe.  Harpal wished to subdivide the property and approached Jasbir for a loan.

[5]      The loan was subject of a family arrangement without legal advice being taken.  Jasbir says the T J Trust did not lodge a mortgage „to protect [its] interests‟ because of the consequences it would have for the defendant in respect of ASB‟s first mortgage.

[6]      The application asserting a claim of an interest in the property asserts reliance upon a verbal agreement to permit a caveat being lodged in the event the loan was not repaid.

[7]      The caveat claims an interest by an agreement to mortgage.  A copy of that

„agreement‟ is attached to Jasbir‟s affidavit, but it is not an agreement to mortgage, it

is an acknowledgement of debt, and it is undated.

[8]      Section 137(1) of the Land Transfer Act 1952 sets out the basis on which a caveat may be lodged.   Such may be lodged if a person claims to be entitled to a beneficial interest in land by virtue of any unregistered agreement.

[9]      Section 24 of the Property Law Act 2007 provides that a contract for the disposition of land is not enforceable unless it is in writing or its terms are recorded in writing.   In this case the plaintiff‟s claim of a caveat relied on an agreement to mortgage which does not exist. Also, the verbal agreement asserted on behalf of D J Trust is not a caveatable interest.

[10]     Accordingly the applicant‟s application has no prospect of succeeding and it

is dismissed.

[11]     Costs are awarded to the defendant on a 2B basis together with disbursements approved by the Registrar.

Associate Judge Christiansen