S C BHANA and J M BHANA v RANOLF CO LIMITED AND JAAFAR HOLDINGS LIMITED [2014] NZHC 763

S C BHANA and J M BHANA v RANOLF CO LIMITED AND JAAFAR HOLDINGS LIMITED [2014] NZHC 763

Plaintiffs' caveats were removed because Jaafar held a first registered mortgage that took priority; plaintiffs had contractually agreed to grant an exclusive first mortgage to Jaafar, plaintiffs failed to prove a superior unregistered registrable interest or any Land Transfer Act fraud, and the caveats served no...

Source-derived case information.

Citation
[2014] NZHC 763
Parties
First Plaintiff: Stephen Chiman Bhana; Second Plaintiff: Jasu Mati Bhana; First Defendant: Ranolf Company Limited; Second Defendant: Jaafar Holdings Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 April 2014
Procedural Posture
Civil Applications Under Land Transfer Act (caveat Removal/sustain) / Interlocutory Application Hearing and Judgment
Outcome
Plaintiffs' applications to sustain caveats refused; second defendant's application to remove caveats granted conditionally
Legal Topics
Caveat, Indefeasibility, Mortgagee Sale, S 145 a Land Transfer Act, S 62 Land Transfer Act, Illegal Contracts, Abuse of Process, Costs
Property Law Land Transfer Act Mortgages Contract Law Civil Procedure Financial Services Regulation Caveat Indefeasibility +6 more

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Parties

Stephen Chiman Bhana

First Plaintiff

Jasu Mati Bhana

Second Plaintiff

Ranolf Company Limited

First Defendant

Jaafar Holdings Limited

Second Defendant

Procedural Posture

Civil Applications Under Land Transfer Act (caveat Removal/sustain) / Interlocutory Application Hearing and Judgment

Legal Issues

  1. 1 Whether plaintiffs have a caveatable interest sufficient to sustain caveats registered January 2014
  2. 2 Whether the first registered mortgagee (Jaafar) holds an indefeasible priority under s 62 and s 105 of the Land Transfer Act 1952
  3. 3 Whether alleged misconduct/unconscionability or non‑registration under the Financial Service Providers Act renders the mortgage illegal or void

Ratio Decidendi

Plaintiffs' caveats were removed because Jaafar held a first registered mortgage that took priority; plaintiffs had contractually agreed to grant an exclusive first mortgage to Jaafar, plaintiffs failed to prove a superior unregistered registrable interest or any Land Transfer Act fraud, and the caveats served no useful purpose and unduly interfered with Jaafar's lawful exercise of mortgagee sale rights; removal was ordered conditional on presentation of memoranda of transfer.

Court Disposition

Plaintiffs' applications to sustain caveats refused; second defendant's application to remove caveats granted conditionally

Orders

  • The caveats lodged by the plaintiffs are removed on presentation of the memoranda of transfer to the District Land Registrar.
  • Memoranda as to costs to be filed and exchanged by 16 May 2014; submissions of the second defendant to be delivered by 2 May 2014; a decision on costs will issue in due course.