PATEL v RAJJO NOMINEES LIMITED [2018] NZHC 2746

PATEL v RAJJO NOMINEES LIMITED [2018] NZHC 2746

Because the trustees had paid the full judgment debt, the balance of justice required removal of caveats and discharge of charging orders over their properties; the potential disadvantage to the defendant from the s 148 prohibition did not outweigh the trustees' right to deal with their property. The second defendant should be struck out because he was improperly cited, and costs are limited to recovery of plaintiffs' disbursements against the first defendant with no costs to the solicitor representing himself.

Citation
[2018] NZHC 2746
Parties
Plaintiff (trustee): Naginbhai Neil Ghelabhai Patel; Plaintiff (trustee): Ratilal Bhikhubhai Patel; First Defendant: Rajjo Nominees Limited; Second Defendant: John Andrew Dean
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 October 2018
Procedural Posture
Civil Property Enforcement / Caveat and Charging Order Removal / Hearing in High Court (wellington Commercial List) Application Determined
Outcome
Application granted in part: charging orders discharged and caveats removed; second defendant struck out; limited costs awarded
Legal Topics
Caveat Removal, Charging Orders, Default Judgment, Setting Aside Judgments, Land Transfer Act S 148, Solicitor Litigant Costs
Property Civil Procedure Costs Land Law Caveat Removal Charging Orders Default Judgment Setting Aside Judgments +2 more

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Parties

Naginbhai Neil Ghelabhai Patel

Plaintiff (trustee)

Ratilal Bhikhubhai Patel

Plaintiff (trustee)

Rajjo Nominees Limited

First Defendant

John Andrew Dean

Second Defendant

Procedural Posture

Civil Property Enforcement / Caveat and Charging Order Removal / Hearing in High Court (wellington Commercial List) Application Determined

Legal Issues

  1. 1 Whether caveats registered over trustees' property should be removed
  2. 2 Whether charging orders over the properties should be discharged
  3. 3 Whether the second defendant should be struck out as a party

Ratio Decidendi

Because the trustees had paid the full judgment debt, the balance of justice required removal of caveats and discharge of charging orders over their properties; the potential disadvantage to the defendant from the s 148 prohibition did not outweigh the trustees' right to deal with their property. The second defendant should be struck out because he was improperly cited, and costs are limited to recovery of plaintiffs' disbursements against the first defendant with no costs to the solicitor representing himself.

Court Disposition

Application granted in part: charging orders discharged and caveats removed; second defendant struck out; limited costs awarded

Orders

  • By consent, discharge of the charging orders over the 11 properties owned by the trustees identified in the affidavit of Mr Naginbhai Neil Ghelabhai Patel dated 21 August 2018
  • Removal of the caveats registered over those same titles