WANHILL v WANHILL [2015] NZHC 1012

WANHILL v WANHILL [2015] NZHC 1012

The plaintiff failed to show an arguable caveatable interest in the George Street property and, in any event, there was no practical purpose in sustaining the caveat because the mortgagee ANZ had priority and the sale produced no equity to satisfy the plaintiff, so the caveat must lapse.

Citation
[2015] NZHC 1012
Parties
Plaintiff/applicant: Rosalie Anne Wanhill; Defendant/respondent: Kevin Benjamin Wanhill
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 May 2015
Procedural Posture
Application Under S 145 a of the Land Transfer Act 1952 (application That Caveat Not Lapse) / Hearing and Oral Judgment on Application to Prevent Caveat From Lapsing
Outcome
Caveat registered against the George Street property (noted as registered 23 April 2015) ordered to lapse/removed
Legal Topics
Caveat, Priority of Mortgage, Lapse of Caveat, S 145 a Land Transfer Act 1952, Costs Follow the Event
Property Law Land Transfer Equity Civil Procedure Costs Caveat Priority of Mortgage Lapse of Caveat +2 more

Case Brief

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Parties

Rosalie Anne Wanhill

Plaintiff/applicant

Kevin Benjamin Wanhill

Defendant/respondent

Procedural Posture

Application Under S 145 a of the Land Transfer Act 1952 (application That Caveat Not Lapse) / Hearing and Oral Judgment on Application to Prevent Caveat From Lapsing

Legal Issues

  1. 1 Whether the plaintiff has a reasonably arguable caveatable interest in the George Street property
  2. 2 Whether the court should exercise its discretion to sustain or remove the caveat even if an arguable interest exists
  3. 3 Whether there is any net equity from the sale available to satisfy the plaintiff's claim

Ratio Decidendi

The plaintiff failed to show an arguable caveatable interest in the George Street property and, in any event, there was no practical purpose in sustaining the caveat because the mortgagee ANZ had priority and the sale produced no equity to satisfy the plaintiff, so the caveat must lapse.

Court Disposition

Caveat registered against the George Street property (noted as registered 23 April 2015) ordered to lapse/removed

Orders

  • The caveat lodged by the plaintiff against the George Street property is to lapse/ be removed.
  • Costs awarded to the defendant on category 2B limited to the appearance in the list on 12 May 2015, the appearance on 13 May 2015 for hearing, the filing of a notice of opposition and affidavit, and the disbursement related to filing the opposition.