TOPA PARTNERS LTD v JWL INTERNATIONAL GROUP LTD [2020] NZHC 182

TOPA PARTNERS LTD v JWL INTERNATIONAL GROUP LTD [2020] NZHC 182

Clause 10.1 of the building contract, properly construed, granted Topa an immediate equitable interest in the property (an agreement to mortgage in registrable form) capable of supporting the caveat; clause 9 (reservation of title) did not create an equitable interest in the land; in the exercise of its discretion it was not appropriate to order lapse of the caveat and conditions should be imposed (undertaking as to damages and requirement to commence proceedings).

Citation
(2020) 21 NZPCR 591
Parties
Applicant/caveator: Topa Partners Limited; Respondent/registered Proprietor: JWL International Group Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 February 2020
Procedural Posture
Caveat Lapse Application Under S143 Land Transfer Act 2017 / Interim Judgment (application to Prevent Lapse of Caveat)
Outcome
Application by registered proprietor to lapse caveat refused; caveat shall not lapse pending further order of the Court subject to conditions
Legal Topics
Caveat, Equitable Mortgage, Agreement to Mortgage, Reservation of Title, Payment Claims (construction Contracts Act), Undertaking as to Damages, Exercise of Judicial Discretion
Property Law Land Law Contract Law Construction Law Security Interests Civil Procedure Caveat Equitable Mortgage +5 more

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Parties

Topa Partners Limited

Applicant/caveator

JWL International Group Limited

Respondent/registered Proprietor

Procedural Posture

Caveat Lapse Application Under S143 Land Transfer Act 2017 / Interim Judgment (application to Prevent Lapse of Caveat)

Legal Issues

  1. 1 Whether clause 10.1 of the building contract created an immediately effective equitable interest (agreement to mortgage) capable of supporting a caveat
  2. 2 Whether reservation of title clause (cl 9) conferred an equitable interest in land or fixtures capable of supporting a caveat
  3. 3 Whether the court should exercise its discretion to remove the caveat or impose conditions of its continuance

Ratio Decidendi

Clause 10.1 of the building contract, properly construed, granted Topa an immediate equitable interest in the property (an agreement to mortgage in registrable form) capable of supporting the caveat; clause 9 (reservation of title) did not create an equitable interest in the land; in the exercise of its discretion it was not appropriate to order lapse of the caveat and conditions should be imposed (undertaking as to damages and requirement to commence proceedings).

Court Disposition

Application by registered proprietor to lapse caveat refused; caveat shall not lapse pending further order of the Court subject to conditions

Orders

  • Caveat no. 11570638.1 lodged against Record of Title CB30A/839 shall not lapse pending further order of the Court
  • Within 14 days Topa Partners Limited must file with the Court a written undertaking that it will abide by any order the Court may make in respect of damages that may be sustained by JWL International Group Limited through the making of the order that the caveat not lapse and that the Court decides Topa ought to pay