Wild v Turner

[2013] NZHC 27

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-2471 [2013] NZHC 27

UNDER  the Land Transfer Act 1952 Section 148(1)

thereof

BETWEEN  MARILYN KAY WILD Applicant

ANDDANIEL JOHN TURNER Respondent

Hearing:         28 January 2013 (Heard at Wellington)

Counsel:         C.J. Tennet - Counsel for Applicant

No appearance for the Respondent

Judgment:      30 January 2013

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Under r 11.5 of the High Court Rules I direct the Registrar to deliver this judgment at 3.30 pm on 30 January 2013.

Solicitors:           Peter C Gilbert, Solicitor, PO Box 2420, Wellington

MARILYN KAY WILD V DJ TURNER HC WN CIV-2012-485-2471 [30 January 2013]

Introduction

[1]      On 2 March 2012 the applicant registered a caveat against the title to a property owned by the respondent.   That caveat is number 8991028.1.   In about November 2012 the respondent applied to the Registrar General of Land to lapse the caveat under s 145A of the Land Transfer Act 1952.   In the present application before me, the applicant now seeks an order that the caveat not lapse.

[2]      That  application  was  filed  on  15  November  2012  and  a  copy  of  the application and affidavits in support were served personally on the respondent on 20

November 2012.  No opposition to the application has been filed by the respondent. Nor was there any appearance for or on behalf of the respondent at the hearing of this application before me on 28 January 2012.

[3]      On 27 November 2012 when this matter came before me initially, an interim order was made that the caveat in question not lapse until a further order of this Court was made.  The application came before me for substantive hearing yesterday,

28 January 2013.  Mr Tennet appeared as counsel for the applicant.  As I have noted above, there was no appearance for the respondent.

Background

[4]      Some time ago, the applicant brought a claim under the Weathertight Homes Resolution Services Act 2006 against the respondent which culminated in an agreed terms of settlement reached between the parties on 19 October 2011 (“the Settlement Agreement”).  That Weathertight Homes claim had been referred to mediation and as a result the Settlement Agreement had been reached.  This required the respondent to pay to the applicant the sum of $13,500.00 in full and final settlement of the claim on terms which were specifically recorded and agreed as follows:

“(a)     Principal Sum to be paid in full on or before 19-10-2013 into the trust account of Reeves Lawyers Limited.

(b)      Mr Turner agrees to execute a term loan agreement for the sum of

$13,500.00 in favour of Ms Wild, which will provide for the creation of a caveatable interest over the property at 16 Mamuku Street, Paraparaumu or such other property owned by Mr Turner.”

[5]      The evidence before me in the affidavit of the applicant dated 15 November

2012 confirms that the agreed settlement figure of $13,500.00 remains to be paid on or before 19 October 2013.  In the meantime the applicant has registered the caveat in question over a property owned by the respondent being certificate of title WN50D/550 which appears to be in the Paekakariki Survey District.

[6]      The caveatable interest claimed by the applicant in the caveat is specified as an estate or interest claimed pursuant to an “Agreement to Mortgage in Settlement Agreement dated 19 October 2011” between the applicant and the respondent as mortgagee and mortgagor.

Legal Principles

[7]      The present application seeks an order that the caveat in question not lapse under s 145A of the Land Transfer Act 1952.  It is well accepted, however, that the same principles apply to applications under that section as to applications made pursuant to ss 143 and 145.

[8]      The general approach to these applications was settled in Sims v Lowe [1988]

1 NZLR 656 at 660 (Court of Appeal):

The caveator seeks to clog or fetter the proprietary interest of another.  As a matter of principle it seems right that he must justify the continued existence of his caveat. He will do that if he can show he has a reasonably arguable case for the interest he claims.

[9]      The applicant  here seeking to  sustain  the caveat  thus  has  the  burden  of establishing a “reasonably arguable case” that he has a caveatable interest in the property in question:  Castle Hill Run Ltd v NZI Finance Ltd [1985] 2 NZLR 104 at

106 (Court of Appeal). An order for removal of a caveat will not be made unless it is patently clear that the caveat cannot be maintained, either because there was no valid

ground for lodging it, or no such ground now exists:  Sims v Lowe at 659-660.  The Court therefore should not finally determine the rights of the parties unless the facts are not in dispute and the law has been fully argued:  New Zealand Limousin Cattle Breeders Society Inc v Robertson [1984] 1 NZLR 41 (CA).

[10]     In the present case, as I have noted above, there was no opposition to the present application or defence filed on behalf of the respondent.  On its face, in my view, there can be no doubt here that the applicant has a recognisable caveatable interest in the property in question as the Weathertight Homes Settlement Agreement says as much.  The title which has been caveated clearly relates to a property owned by the respondent.

[11]     There  does  not,  in  my  view,  appear  to  be  any  basis  upon  which  the respondent could reasonably require the removal of this caveat until such time as the

$13,500.00 payment he agreed to be made by 19 October 2013 under the Settlement

Agreement is paid.

[12]     Further, there is nothing before me to suggest that the residual discretion which the Court has to remove a caveat where there may be no practical advantage in its continuance would apply here – see Pacific Homes Limited (in receivership) v Consolidated Joineries Limited [1996] 2 NZLR 652 (CA).

[13]     For all these reasons and particularly given that there has been no opposition provided to the present application, I find that the application must succeed.

Conclusion

[14]     For all those reasons outlined above an order is now made (as a permanent order) that caveat number 8991028.1 shall not lapse.

[15]     As to costs, the applicant having succeeded in this application I see no reason why costs should not follow the event in the usual way.

[16]   Costs are now awarded to the applicant against the respondent on this application on a category 2B basis together with disbursements as fixed by the Registrar.

‘Associate Judge D.I. Gendall’