LAU V UMH GROUP LTD [2016] NZCA 132

LAU V UMH GROUP LTD [2016] NZCA 132 [15 April 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA692/2015[2016] NZCA 132BETWEEN AUGUSTINE LAUApplicantAND UMH GROUP LIMITEDRespondentCourt: Stevens, Cooper and Winkelmann JJCounsel: Applicant in personR Reed for RespondentJudgment:(On the papers)15 April 2016 at 12.30 pmJUDGMENT OF THE COURTThe application to extend the time to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] The applicant, Augustine Lau, has made an application under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time in which to appeal an order of the High Court extinguishing a land covenant.1 By consent, the present application is dealt with on the papers.[2] Mr Lau purports to be an agent of Liansen Mao, and also of Dongfeng Lin. He claims the application has been made by him on their behalf. The basis on which1 UMH Group Ltd HC Auckland CIV-2015-404-1993, 13 October 2015 (order granting application to extinguish land covenant). UMH Group Ltd was the only party to the application to extinguish the covenant, which was unopposed, as explained below.he asserts to be their agent is unclear. There is no suggestion that he is a solicitor. As well as filing the present application, Mr Lau has sworn an affidavit in support of it. Notwithstanding our reservations concerning his status we have addressed the merits of the application, which is opposed by the respondent, UMH Group Ltd (UMH).[3] UMH owns property at 245 Murphys Road, Auckland, that is part of a larger block of land which was the subject of a land covenant registered in 1973. The terms of the covenant stated that it would have no force or effect after the land affected by it had been zoned residential.[4] UMH wished to subdivide the property so applied to the High Court at Auckland on 26 August 2015 to extinguish the covenant under s 316 of the Property Law Act 2007. The application was advanced on the basis that the covenant had effectively become redundant as a result of zoning changes. It was said that extinguishing the covenant would not adversely affect the persons entitled to benefit from it and that unless the covenant were extinguished, persons wishing to purchasesections in the respondent's subdivision would be adversely affected. An affidavit in support was sworn by Gregory Strange, a "land transfer consultant".[5] That application was the subject of an interlocutory application without notice on 23 September 2015 for an order for substituted service on the owners of the land affected by the covenant. Woolford J made the order for substituted serviceon 29 September 2015 and, in response to UMH's simultaneous interlocutoryapplication, abridged the time for responding to the application to extinguish the covenant. The parties served with the application were accordingly required to respond within five working days from the date of service which took place electronically on 1 October 2015. No party opposed the application within the time specified by Woolford J.[6] One of the affected parties was Mr Mao, who is the owner of a property located at 423 Ormiston Road, Auckland. Mr Mao intends to sell that property to Ms Lin who had registered a caveat in respect of her interest in Mr Mao's property after UMH's application to extinguish the covenant.[7] The application to extinguish the covenant was granted by Gilbert J on 13 October 2015 and the formal order sealed the same day.2[8] It appears that Mr Mao was provided with the application to extinguish the covenant and other materials filed in support of it because on 21 October 2015advice was sent from an email address of "Jiawen Mao" to UMH's solicitors stating:You should do the title search on 423 Ormiston rd as you do not include the partial purchaser of this property who had lodged the caveat on the property.[9] Mr Lau notes in his affidavit that Mr Mao also served notice of opposition on 21 October 2015. This confirms that he had been served with the application, but the notice of opposition was out of time.[10] Subsequently, on 26 November 2015, Mr Lau made an application to the High Court seeking a recall of the judgment. Gilbert J issued a minute in which he noted that the judgment could not be recalled having regard to r 11.9 of the High Court Rules, since it had been drawn up and sealed.3 The application for recall of the judgment was dismissed accordingly.[11] In his application to this Court for an extension of the time for appealing, Mr Lau referred to statements in Mr Mao's notice of opposition stating:1. The land covenant that stated clearly in the applicant's affidavitswear by Mr Chiu document marked "C" that the land covenant canonly be redundant if the properties zoned residential.2. Unfortunately, the 423 Ormiston rd (owned by us-CT no 482726) still under zoned recreation reserved under 2010 flatbush amended town planning plan.3. As the results, I can fully object the applicant's application.4. Moreover, my property had been sold/partially rent to third party Ms Dongfeng LIN and she is not consenting applicant's application.5. Applicant not informing Dongfeng LIN as she caveated the title of CT-482726.6. I just been back to work after travelling to USA.2 UMH Group Ltd, above n 1.3 UMH Group Ltd HC Auckland CIV-2015-404-1993, 27 November 2015.7. As the results, the application dated 29th September 2015-Order of court for reduction of time not relevant to impose on me as I need time to discuss with my purchasers/lessee.[12] The difficulty that Mr Lau faces is that since neither he, Mr Mao or Ms Lin took timely steps in relation to the application in the High Court, they cannot now appeal to this Court.4 Further, it would be wrong in principle for this Court to entertain any appeal when it is clear that the procedure established by the High Court for dealing with the application under s 316 of the Property Law Act was complied with. There can be no suggestion either that Gilbert J erred when he rejected the application for recall under r 11.9.[13] In the result, the application to extend the time to appeal is declined.[14] If there is any issue as to costs the respondent may file a memorandum within 10 working days, the applicant having a further 10 working days to respond.Solicitors:Prestige Lawyers Ltd, Auckland for Respondent4 Misbin v USG Interiors Pacific Ltd [2009] NZCA 379 at [4].