HART v ANZ HC AK CIV-2012-404-2583

HART v ANZ HC AK CIV-2012-404-2583

The court dismissed the interim injunction and ordered removal of the caveats because the asserted interests underlying the caveats had no priority over the bank's mortgagee interest and the bank had not consented to the asserted sales or lease; accordingly the caveats were unjustified and constituted an abuse of process in the context of the bank's exercise of its power of sale.

Citation
openlaw-cca44f90_2f6b_4168_9dd4_e64c2e44c59c.pdf
Parties
First Plaintiff / First Respondent: Barry John Hart; Second Plaintiff / Fourth Respondent: Woodhill Stud Limited; Third Plaintiff / Fifth Respondent: Woodhill Holdings Limited; Fourth Plaintiff / Sixth Respondent: Malory Corporation Limited; Defendant / Applicant: ANZ National Bank Limited; Second Respondent: Serenella Holdings Limited; Third Respondent: Woodhill Farms Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
12 July 2012
Procedural Posture
Interim Injunction and Caveat Removal (land Transfer Act S143) / Hearing / Oral Judgment (determination of Interim Injunction and S143 Application)
Outcome
Application for interim injunction dismissed; orders removing caveats granted; costs reserved
Legal Topics
Caveats, Mortgagee Sale, Interim Injunction, Abuse of Process, Costs
Property Law Equity Civil Procedure Caveats Mortgagee Sale Interim Injunction Abuse of Process Costs

Case Brief

Summary, issues, holding and outcome

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Parties

Barry John Hart

First Plaintiff / First Respondent

Woodhill Stud Limited

Second Plaintiff / Fourth Respondent

Woodhill Holdings Limited

Third Plaintiff / Fifth Respondent

Malory Corporation Limited

Fourth Plaintiff / Sixth Respondent

ANZ National Bank Limited

Defendant / Applicant

Serenella Holdings Limited

Second Respondent

Woodhill Farms Limited

Third Respondent

Procedural Posture

Interim Injunction and Caveat Removal (land Transfer Act S143) / Hearing / Oral Judgment (determination of Interim Injunction and S143 Application)

Legal Issues

  1. 1 Whether an interim injunction should restrain the bank exercising its powers of sale as mortgagee
  2. 2 Whether caveats lodged by Hart and associated companies should be removed under s143 Land Transfer Act 1952
  3. 3 Whether the caveats assert interests that have priority over the bank's mortgagee interest

Ratio Decidendi

The court dismissed the interim injunction and ordered removal of the caveats because the asserted interests underlying the caveats had no priority over the bank's mortgagee interest and the bank had not consented to the asserted sales or lease; accordingly the caveats were unjustified and constituted an abuse of process in the context of the bank's exercise of its power of sale.

Court Disposition

Application for interim injunction dismissed; orders removing caveats granted; costs reserved

Orders

  • Interim injunction dismissed
  • Orders removing the caveats as per draft attached to judgment