Singh v Foley

[2015] NZHC 3226

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-3002 [2015] NZHC 3226

IN THE MATTER OF

the Wages Protection and Contractors'

Liens Act 1939 (repealed) and lien no. K68370 on CT Title Identifier 555674

North Auckland Registry

BETWEEN

MEENA KUMAR SINGH Applicant

AND

THOMAS HENRY FOLEY Respondent

Hearing:	On the papers
Counsel:	B Parshotam for the Applicant
Order:	15 December 2015

ORDER OF MUIR J

This judgment was delivered by me on Tuesday 15 December 2015 at 3.45 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Parshotam Lawyers, Mt Roskill, Auckland

SINGH v FOLEY [2015] NZHC 3226 [15 December 2015]

[1]      This  application  has  been  referred  to  me.     I  thank  counsel  for  his memorandum.

[2]      The  application  is  to  discharge  a  lien  registered  against  the  applicant’s property in 1958 under the Wages Protection and Contractors’ Liens Act 1939 (the Act).   Four transfers of the property have since been registered without Land Information New Zealand (LINZ) identifying the extant lien.  However, in the course of a recent attempt by the applicant to settle the property on a family trust it was flagged  and  the  transfer  rejected.    In  an  affidavit  in  support  of  the application experienced solicitor Mr Christopher Bierre deposes he is unsure why the discharge of lien was overlooked in respect of the several previous transfers but that he can “only conclude that the lien is now being flagged to prevent dealings because the LINZ’s registration system is now computerised”, whereas when the applicant acquired the property in 1999 the system was still paper-based.

[3]      The application to discharge the lien is made without notice on the basis that there would be considerable difficulty in identifying the respondent or his estate.

[4]      The applicant’s affidavit exhibits the statement of claim pursuant to which the lien was registered.  This was filed on 18 November 1958 and identifies Mr Thomas Henry Foley of Auckland, builder, as claimant and Mr William Spaapagk of Auckland, contractor, as defendant.  The statement of claim refers to a contract for the construction of a dwelling house in the amount of £6,776 plus extras of which the sum of             was paid, leaving a sum of £1,670 1.9 as payable.

[5]      I note from an historic search of the title that a charging order was registered against the title by the same claimant on 26 March 1964 and that this was discharged on 13 September 1985.  From that discharge the strong inference is available that the underlying debt to which the lien related has been paid or satisfied.

[6]      Under s 39 of the Act the Court may discharge a lien on payment into Court of the amount claimed or on such other terms as the Court deems just.  Section 42 in turn provides that an order of the Court discharging a lien may be registered in the same manner and for the same fee as the lien.  The Act was repealed pursuant to the

Wages  Protection  and  Contractors’  Liens  Repeal  Act  1987  (the  Repeal  Act). However s 3 of the Repeal Act provides that the Act continues to apply in respect of any notice of lien under s 28 of the Act and any action commenced under s 34 of the Act which is not finally determined before the commencement of the Repeal Act.  I agree with counsel for the applicant that subs 3 should be interpreted to include any application to the Court for discharge of a lien following notice under s 28.

[7]      I am satisfied on the basis:

(a)       of the 57 year period which has elapsed since registration of the lien;

and

(b)the fact that a Charging Order in relation to the same matter was discharged on 13 September 1985

that an order is appropriate under s 39 of the Act.

[8]      The strong inference is available that at the time the charging order was discharged the parties simply overlooked discharge of the lien.  I do not consider, in those circumstances, that the applicant should be put to the trouble and expense of endeavouring to obtain a receipt for the purposes of s 42(1) of the Act.

[9]      I further consider that it would cause undue delay, expense and prejudice to the applicant to expect her to locate Mr Foley (or more likely the beneficiaries of his estate) for the purpose of placing him on notice of the application.

[10]     For completeness I note that I am not persuaded by the applicant’s argument under s 20 of the Limitation Act 1950 because the Respondent’s 1958 statement of claim, which was the basis of the lien registration, itself sought judgment for the amount said to be outstanding under the building contract.  As such the case is not one where a claim would be made more than 12 years after “the date when the right to receive the money accrued” in terms of that section.

Result

[11]     I order that lien K68370 on Title Identifier 555674 (827 Dominion Road, Mt

Roskill) be discharged.

[12]     I impose no additional terms of discharge.

Muir J