THE KOHIMARAMA TRUST LIMITED v THE MELANESIAN MISSION TRUST BOARD [2017] NZHC 298

THE KOHIMARAMA TRUST LIMITED v THE MELANESIAN MISSION TRUST BOARD [2017] NZHC 298

The vendor was entitled to effect transfer of its registered encumbrances by standard e-dealing and was not contractually required to procure fresh unsigned memoranda from owners who took title subject to existing encumbrances; therefore the vendor was in all material respects ready, willing and able to settle when serving the valid settlement notice, the purchaser failed to settle or lodge a timely compensation claim, the vendor validly cancelled the contract, and the purchaser's caveats no longer protected any equitable interest and must lapse.

Citation
[2017] NZHC 298
Parties
Applicant/purchaser by Nomination: The Kohimarama Trust Limited; Respondent/vendor: The Melanesian Mission Trust Board
Court
High Court
Jurisdiction
New Zealand
Judgment Date
1 March 2017
Procedural Posture
Caveat Application Under Land Transfer Act; Dispute Over Validity of Settlement Notice and Cancellation of Sale / High Court Judgment on Application to Sustain Caveats (judgment Delivered)
Outcome
Application by purchaser to sustain caveats dismissed; caveats to lapse and purchaser ordered to pay costs to vendor
Legal Topics
Caveat, Settlement Notice, Ready Willing and Able, Memoranda of Encumbrance, Resumption Power, Cancellation for Breach, Compensation Claim, Tender of Settlement
Property Law Conveyancing Contract Law Equity Caveat Settlement Notice Ready Willing and Able Memoranda of Encumbrance +4 more

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Parties

The Kohimarama Trust Limited

Applicant/purchaser by Nomination

The Melanesian Mission Trust Board

Respondent/vendor

Procedural Posture

Caveat Application Under Land Transfer Act; Dispute Over Validity of Settlement Notice and Cancellation of Sale / High Court Judgment on Application to Sustain Caveats (judgment Delivered)

Legal Issues

  1. 1 Whether vendor was ready, willing and able to settle when serving the settlement notice
  2. 2 Whether vendor was obliged to provide fresh memoranda of encumbrance signed by current registered proprietors as part of settlement
  3. 3 Whether purchaser's caveats remained supportable after vendor cancelled the agreement

Ratio Decidendi

The vendor was entitled to effect transfer of its registered encumbrances by standard e-dealing and was not contractually required to procure fresh unsigned memoranda from owners who took title subject to existing encumbrances; therefore the vendor was in all material respects ready, willing and able to settle when serving the valid settlement notice, the purchaser failed to settle or lodge a timely compensation claim, the vendor validly cancelled the contract, and the purchaser's caveats no longer protected any equitable interest and must lapse.

Court Disposition

Application by purchaser to sustain caveats dismissed; caveats to lapse and purchaser ordered to pay costs to vendor

Orders

  • Caveats the subject of this decision will lapse on 17 March 2017
  • The Kohimarama Trust Ltd to pay costs to The Melanesian Mission Trust Board on this application