CASHMERE CAPITAL LIMITED V CROSSDALE PROPERTIES LIMITED AND ORS SC 46/2009
The Supreme Court granted leave to appeal to decide whether s 22(1) of the Retirement Villages Act 2003 applies to the exercise by Cashmere of its mortgage rights; the order does not resolve the substantive question but frames that as the approved ground of appeal.
Source-derived case information.
- Citation
- CASHMERE CAPITAL LIMITED V CROSSDALE PROPERTIES LIMITED AND ORS SC 46/2009
- Parties
- Appellant: Cashmere Capital Limited; Respondent: Crossdale Properties Limited; Respondent: 2nd to 8th Respondents
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 24 July 2009
- Procedural Posture
- Appeal / Leave to Appeal Granted
- Outcome
- Leave to appeal granted; approved ground confined to whether s 22(1) of the Retirement Villages Act 2003 applies to Cashmere's exercise of mortgage rights; no final determination on merits in this order.
- Legal Topics
- S 22(1) Retirement Villages Act 2003 Applicability, Consent to Leases Under S119 LTA, S138(1) Property Law Act 2007, Operator Registration Obligations, Mortgagee Enforcement Rights
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cashmere Capital Limited
Appellant
Crossdale Properties Limited
Respondent
2nd to 8th Respondents
Respondent
Procedural Posture
Appeal / Leave to Appeal Granted
Legal Issues
- 1 Whether s 22(1) of the Retirement Villages Act 2003 applies to the exercise by Cashmere of its rights under its mortgage
- 2 Whether Cashmere consented to leases by operation of the exception to s 119 Land Transfer Act 1952 or s 138(1) Property Law Act 2007
- 3 Whether Cashmere became an operator under the Retirement Villages Act and thereby obligated to register the retirement home and confer benefits of s 22 on respondents
Ratio Decidendi
The Supreme Court granted leave to appeal to decide whether s 22(1) of the Retirement Villages Act 2003 applies to the exercise by Cashmere of its mortgage rights; the order does not resolve the substantive question but frames that as the approved ground of appeal.
Court Disposition
Leave to appeal granted; approved ground confined to whether s 22(1) of the Retirement Villages Act 2003 applies to Cashmere's exercise of mortgage rights; no final determination on merits in this order.
Orders
- Leave to appeal granted
- Approved ground of appeal specified as whether s 22(1) of the Retirement Villages Act 2003 applies to exercise by Cashmere of its mortgage rights
Full Case Text
Judgment text and source record
1 paragraphs
CASHMERE CAPITAL LIMITED V CROSSDALE PROPERTIES LIMITED AND ORS SC 46/2009 24 July 2009IN THE SUPREME COURT OF NEW ZEALAND SC 46/2009 [2009] NZSC 81BETWEEN CASHMERE CAPITAL LIMITED Appellant AND CROSSDALE PROPERTIES LIMITED AND ORS Respondents Court: Blanchard, McGrath and Wilson JJ Counsel: G A Hair for Appellant N A Till QC for 2nd to 8th Respondents Judgment: 24 July 2009JUDGMENT OF THE COURT A Leave to appeal is granted. B The approved ground of appeal is whether s 22(1) of the Retirement Villages Act 2003 applies to the exercise by Cashmere of its rights under its mortgage. C The second to eighth respondents support the judgment below on the following additional grounds: (i) That Cashmere consented to leases in favour of them in terms of the exception to s 119 of the Land Transfer Act 1952 or in terms of section 138(1) of the Property Law Act 2007; (ii) That Cashmere became an "operator" of a retirement village under the Retirement Villages Act with the consequence that it was obliged to register the retirement home and that the respondents are entitled to the benefit of s 22 of the Act.Solicitors: Malley & Co, Christchurch for Applicant Steel & Co, Christchurch for Respondents