KIWI FREEHOLDS QUEEN STREET LTD AND ORS V SHANTI HOLDINGS LTD AND ORS HC AK CIV 2006-404-3340

KIWI FREEHOLDS QUEEN STREET LTD AND ORS V SHANTI HOLDINGS LTD AND ORS HC AK CIV 2006-404-3340

By a narrow margin the Court extended the caveat until further order on conditions because the appeal was bona fide, there was a real possibility that damages would be an inadequate remedy and there were suspicious circumstances surrounding the mortgage assignment and sale; those considerations outweighed delay by the plaintiffs and potential prejudice to defendants, subject to conditions to protect third parties and to ensure expedition of the appeal.

Citation
openlaw-e8a96803_2cd5_44c8_b67b_23e2aafe56a7.pdf
Parties
First Plaintiff: KIWI FREEHOLDS QUEEN STREET LIMITED; Second Plaintiff: KIWI INTERNATIONAL HOTEL QUEEN STREET LIMITED; Third Plaintiff: R T SCHOFIELD; First Defendant: SHANTI HOLDINGS LIMITED; Second Defendant: AHIMSA DEVELOPMENTS LIMITED; Third Defendants: D M V GIBBS AND H DROEGE; Fifth Defendant: RHADA (referred to as Fifth Defendant); Sixth Defendant: RADHIKA (referred to as Sixth Defendant)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
25 June 2007
Procedural Posture
High Court Civil Proceedings Concerning Property Contracts, Caveat and Specific Performance / Interim Application to Extend Caveat Pending Appeal (order Made to Extend Until Further Order Subject to Conditions)
Outcome
Caveat extended until further order of the Court on conditions
Legal Topics
Caveat, Specific Performance, Stay of Execution/pending Appeal Orders, Lapse of Caveat (s145 Land Transfer Act), Mortgage Power of Sale, Fraudulent Conveyance Allegations
Property Law Contract Law Equity Civil Procedure Caveat Specific Performance Stay of Execution/pending Appeal Orders Lapse of Caveat (s145 Land Transfer Act) +2 more

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Parties

KIWI FREEHOLDS QUEEN STREET LIMITED

First Plaintiff

KIWI INTERNATIONAL HOTEL QUEEN STREET LIMITED

Second Plaintiff

R T SCHOFIELD

Third Plaintiff

SHANTI HOLDINGS LIMITED

First Defendant

AHIMSA DEVELOPMENTS LIMITED

Second Defendant

D M V GIBBS AND H DROEGE

Third Defendants

RHADA (referred to as Fifth Defendant)

Fifth Defendant

RADHIKA (referred to as Sixth Defendant)

Sixth Defendant

Procedural Posture

High Court Civil Proceedings Concerning Property Contracts, Caveat and Specific Performance / Interim Application to Extend Caveat Pending Appeal (order Made to Extend Until Further Order Subject to Conditions)

Legal Issues

  1. 1 Whether the court should extend the caveat under s145 Land Transfer Act 1952 pending determination of appeal
  2. 2 Whether the appellant's appeal would be rendered nugatory if the caveat lapsed
  3. 3 Whether damages would be an adequate remedy in lieu of specific performance

Ratio Decidendi

By a narrow margin the Court extended the caveat until further order on conditions because the appeal was bona fide, there was a real possibility that damages would be an inadequate remedy and there were suspicious circumstances surrounding the mortgage assignment and sale; those considerations outweighed delay by the plaintiffs and potential prejudice to defendants, subject to conditions to protect third parties and to ensure expedition of the appeal.

Court Disposition

Caveat extended until further order of the Court on conditions

Orders

  • Earlier interim order extending the caveat until further order of the Court remains in force
  • Caveat extended until further order on conditions to be determined after filing of timetable and consideration of undertaking as to damages