AORANGI FORESTS LIMITED v PATRICIA ANNE VEGAR-FITZGERALD [2013] NZHC 3515

AORANGI FORESTS LIMITED v PATRICIA ANNE VEGAR-FITZGERALD [2013] NZHC 3515 [19 December 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-004198[2013] NZHC 3515BETWEEN AORANGI FORESTS LIMITEDApplicantAND PATRICIA ANNE VEGAR-FITZGERALDRespondentHearing: 19 December 2013Appearances: B J Burt for applicantP H Lowndes for respondentJudgment: 19 December 2013(ORAL) JUDGMENT OF LANG J[on application for interim relief pending appeal to Court of Appeal][1] In this proceeding Aorangi Forests Limited ("Aorangi") sought an orderremoving a caveat lodged by Ms Patricia Vegar-Fitzgerald against the title to a forestproperty over which Aorangi holds a registered mortgage. Ms Vegar-Fitzgeraldlodged the caveat to protect her interest as purchaser under an agreement for sale andpurchase that she has entered into with the owner of the property, Vegar PropertiesLimited.[2] Aorangi wants the caveat removed so that it can complete an agreement for the sale of the property to a third party. Aorangi has entered into that agreement using the powers vested in it under the mortgage.[3] On 16 December 2013, Ellis J issued a judgment in which she grantedAorangi's application.1 In doing so, the Judge rejected a submission for Ms Vegar-Fitzgerald that Aorangi and the Bank of New Zealand ("BNZ") as mortgagees inrespect of the property had consented to the sale to Ms Vegar-Fitzgerald.[4] Ms Vegar-Fitzgerald wishes to appeal to the Court of Appeal against theJudge's decision. She will argue that the Judge reached factual conclusions thatwere not open to her in the context of a summary proceeding such as that relating tothe removal of a caveat.[5] Ms Vegar-Fitzgerald now seeks interim relief under r 12(3)(b) of the Court ofAppeal (Civil Appeals) Rules 2005.2 She seeks interim relief in the form of an orderdirecting the Registrar-General not to remove the caveat until such time as herappeal has been heard and determined.[6] The application for interim relief has come before me as a matter of urgency,because the order made by Ellis J has now been sealed and forwarded to theRegistrar-General with a request that the caveat be removed. I have heard theapplication in circumstances where no notice of appeal to the Court of Appeal has1 Aorangi Forests Ltd v Vegar-Fitzgerald [2013] NZHC 3370.2 The application wrongly relied upon r 20.10 of the High Court Rules 2008, but this was amended during the hearing so as to rely upon r 12(3)(b) of the Court of Appeal (Civil Appeals) Rules 2005.yet been filed. I therefore do not have the benefit of being able to consider the grounds of appeal as would normally be the case.[7] Having read the judgment of Ellis J, I consider there is force in thesubmission for Aorangi that, as a matter of fact, the Judge was correct to concludethat neither Aorangi nor BNZ consented to the sale of the property to Ms Vegar-Fitzgerald. I am conscious, however, that removal of the caveat will result inAorangi being able to complete the sale of the property within a very short period.That agreement is apparently conditional only on Ms Vegar-Fitzgerald's caveatbeing removed from the title. Thereafter settlement will take place within 21 days.If that should happen, Ms Vegar-Fitzgerald's rights of appeal would obviously berendered nugatory.[8] Aorangi's agreement contains a "sunset clause" that effectively givesAorangi until 30 June 2014 to obtain an order removing Ms Vegar-Fitzgerald'scaveat. For that reason Aorangi will not be unduly prejudiced if Ms Vegar-Fitzgerald is given a short period within which to file her appeal documents and topersuade the Court of Appeal that it should extend the interim relief I propose togrant.[9] I therefore make an order granting Ms Vegar-Fitzgerald interim relief underr 12(3)(b) of the Court of Appeal (Civil Appeals) Rules 2005. I direct that theRegistrar-General is not to remove the caveat from the title of the property until 14February 2014 or such later date as may be nominated by the Court of Appeal.[10] I record that I have granted interim relief on the understanding that MsVegar-Fitzgerald will forthwith file her appeal in the Court of Appeal. She will alsofile an application for a priority fixture in the Court of Appeal, together with anapplication for an order extending the interim relief I have granted until the appealhas been determined. Those applications will obviously need to be filed in sufficienttime to enable the Court of Appeal to consider them in a Miscellaneous Motions Listin early February 2014.Lang JSolicitors:Chapman Tripp, AucklandCounsel:P H Lowndes, Auckland