Taylor v Naera

[2019] NZHC 2293

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-002463

[2019] NZHC 2293

UNDER

Part 19 of the High Court Rules

IN THE MATTER

of an application by Andrew Taylor for orders pursuant to s 145A Land Transfer Act 1952 in respect of caveat 11149439.1

BETWEEN

ANDREW TAYLOR

Applicant

AND

EVA NAERA

Respondent

Hearing:

11 September 2019

Appearances:

P Stevenson for the Applicant L Bunge for the Respondent

K Pearson for the purchaser, Mr Murphy McDade

Judgment:

13 September 2019

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 13 September 2019 at 11.30 am pursuant to Rule 11.5 of the High Court Rules.

…………………………………

Deputy Registrar

Solicitors:

P Stevenson, Auckland

D M A Burgess, Auckland Davenports City Law, Auckland Hopetoun Legal, Auckland

TAYLOR v NAERA [2019] NZHC 2293 [13 September 2019]

[1]                  On 2 August 2019 I issued an interim judgment in this caveat proceeding. The orders I made were as follows:

Orders

[40]   I order as follows:

a)I issue this judgment as an interim judgment.

b)The caveat will stand on an interim basis (pending further order) to allow [Mrs Naera] to arrange for her (newly instructed) solicitor.

c)I list the matter for review on 8 August 2019 at 11.45 am. In the meantime, [Mrs Naera] has leave to file and serve a memorandum prior to 8 August 2019:

i.      confirming the filing and service (by her solicitor) of an undertaking on her behalf that $120,000 of the net proceeds of sale will be held in trust and paid to the Registrar of the Court to be held on interest bearing deposit, pending the Court’s further order; and

ii.      seeking an order that the caveat lapse.

[41]    I further order:

a)[Mr Taylor] is to file and serve proceedings by 16 August 2019 to establish his claimed interest. An early case management conference is to be allocated at which time consideration can be given to the allocation of an urgent judicial settlement conference if necessary.

b)If [Mr Taylor] fails to file his substantive proceedings by 16 August 2019, or to prosecute his proceeding diligently, [Mrs Naera] has leave to seek further orders to lapse the caveat or to release any sum paid as security by way of memorandum on two days’ notice.

c)I reserve costs pending the further orders that will be made.

[2]                  It has taken Mrs Naera longer than anticipated to instruct a solicitor. I held a telephone conference yesterday when her solicitor confirmed that she has instructed him to file a memorandum providing her undertaking and that she seeks an order that the caveat now lapse.

[3]                  The memorandum was filed today. Accordingly I make final orders in this proceeding as follows:

(a)I order that the caveat lapse;

(b)I further order that the sum of $120,000 is to be paid into Court from the net proceeds of the sale  of  the  property  in  accordance  with  Mrs Naera’s undertaking and held by the Registrar in trust on an interest bearing deposit pending the Court’s further order or earlier agreement of    the    applicant    and    the    respondent    (Mr    Taylor     and Mrs Naera).

(c)The Registrar is to allocate a half day Judicial Settlement Conference in Mr Taylor’s recently commenced proceeding in CIV-2019-404-1669 at the soonest available opportunity, and in any event before 19 December 2019.

(d)The Registrar is to place a copy of this minute on the file for the proceeding in CIV-2019-404-1669 so that the necessary directions can be given in relation to the Judicial Settlement Conference.

(e)I anticipate that costs are not in issue; but if I am wrong about that a costs memorandum may be filed and served within 5 working days.

[4]                  For completeness and to avoid any confusion on the point, Mrs Naera’s right of appeal commences from the date of issue of this final judgment.

Associate Judge Sargisson