CBI COMPANY LIMITED v D & E BUSES LIMITED [2015] NZHC 3205

CBI COMPANY LIMITED v D & E BUSES LIMITED [2015] NZHC 3205

A mortgagee is within the statutory concept of proprietor and may use s145A; CBI failed to establish a reasonably arguable caveatable interest because the 4 March 2014 agreement was uncertain and unenforceable (defective purchaser entity, lack of required formal assignment/consideration, conditional collateral agreements and intervening liquidations), CBI could not effect settlement, and DNA purchased for value in good faith and took possession and expended substantial funds; accordingly CBI's caveat was not sustainable and the application to prevent lapse was dismissed.

Citation
[2015] NZHC 3205
Parties
Applicant (caveator): CBI Company Limited; Respondent (mortgagee/registered Proprietor): D & E Buses Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 December 2015
Procedural Posture
Application to Sustain Caveat (land/caveat Proceeding) / Judgment on Interlocutory Application
Outcome
Application dismissed; CBI's caveat not sustained and ordered to lapse
Legal Topics
Caveat, Lapse of Caveat, S145 a Land Transfer Act, Mortgagee Sale, Contract Validity, Assignment/nomination, Property Law Act S119
Property Law Land Registration Contract Law Equity Caveat Lapse of Caveat S145 a Land Transfer Act Mortgagee Sale +3 more

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Parties

CBI Company Limited

Applicant (caveator)

D & E Buses Limited

Respondent (mortgagee/registered Proprietor)

Procedural Posture

Application to Sustain Caveat (land/caveat Proceeding) / Judgment on Interlocutory Application

Legal Issues

  1. 1 Whether a mortgagee may use s145A of the Land Transfer Act to seek lapse of a caveat
  2. 2 Whether CBI had a caveatable interest enforceable by reason of an agreement for sale and purchase dated 4 March 2014 (as allegedly amended 5 June 2015)
  3. 3 Whether the 4 March 2014 agreement was void for uncertainty/unenforceable or had been discharged

Ratio Decidendi

A mortgagee is within the statutory concept of proprietor and may use s145A; CBI failed to establish a reasonably arguable caveatable interest because the 4 March 2014 agreement was uncertain and unenforceable (defective purchaser entity, lack of required formal assignment/consideration, conditional collateral agreements and intervening liquidations), CBI could not effect settlement, and DNA purchased for value in good faith and took possession and expended substantial funds; accordingly CBI's caveat was not sustainable and the application to prevent lapse was dismissed.

Court Disposition

Application dismissed; CBI's caveat not sustained and ordered to lapse

Orders

  • Application for order that CBI's caveat not lapse dismissed
  • Costs awarded to respondent D & E Buses Limited against CBI Company Limited on a 2B basis; half day hearing time certified