HALLIDAY v BANK OF NEW ZEALAND HC NAP CIV 2012-441-489

HALLIDAY v BANK OF NEW ZEALAND HC NAP CIV 2012-441-489

The Court held that the trees were part of the land (not presently chattels) and the parties' sale contract and conduct created an equitable interest in favour of RCL/Hallidays to be given effect by a forestry right; that equitable interest was unregistered and therefore did not have priority over subsequently registered mortgages, but the Hallidays established a reasonably arguable in personam/estoppel claim and therefore the caveat should not be removed at this stage; declarations that the forestry is a chattel or owned free of the Bank were refused; s105 and indefeasibility did not mandate removal of the caveat given the arguable equitable claim and unresolved in personam issues.

Citation
openlaw-e8ad64e3_e86d_4a38_81da_0f1ff7cd7fcf.pdf
Parties
Applicant/trustees/vendor Interests: MM & HR Halliday Family Trust (trustees MM Halliday, HR Halliday, R H Thomsen, P D Holt); Respondent/first Mortgagee: Bank of New Zealand; Purchasers/mortgagors: K & M Thomsen (purchasers/mortgagors); Vendor/registered Proprietor Prior to Transfer: Raumati Land Company Limited (RCL) (in liquidation)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 November 2012
Procedural Posture
Declaratory Judgment and Ancillary Applications Concerning Forestry Rights, Caveat and Mortgagee Sale / Hearing on Interim/originating Applications for Declarations and Removal of Caveat; Judgment Delivered on Applications
Outcome
Court declined to make declarations sought by the Hallidays and declined to order removal of the caveat; caveat remains pending further in personam proceedings; leave reserved to Bank to apply further; costs to lie where they fall.
Legal Topics
Chattel Versus Fixture, Forestry Right/forestry Right in Gross, Profit À Prendre, Indefeasibility of Title, Caveat, Mortgagee Power of Sale, Priority of Registered Interests, In Personam Estoppel and Constructive Trust, Registration of Interests, Fraud in Land Registration
Property Law Equity Land Transfer Law Contract Law Insolvency Law Forestry Rights Chattel Versus Fixture Forestry Right/forestry Right in Gross +8 more

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Parties

MM & HR Halliday Family Trust (trustees MM Halliday, HR Halliday, R H Thomsen, P D Holt)

Applicant/trustees/vendor Interests

Bank of New Zealand

Respondent/first Mortgagee

K & M Thomsen (purchasers/mortgagors)

Purchasers/mortgagors

Raumati Land Company Limited (RCL) (in liquidation)

Vendor/registered Proprietor Prior to Transfer

Procedural Posture

Declaratory Judgment and Ancillary Applications Concerning Forestry Rights, Caveat and Mortgagee Sale / Hearing on Interim/originating Applications for Declarations and Removal of Caveat; Judgment Delivered on Applications

Legal Issues

  1. 1 Whether the trees/forestry are chattels or fixtures
  2. 2 Whether the Hallidays own the forestry or RCL/the Thomsens/Bank do
  3. 3 Whether there is an enforceable forestry right agreement dated 18 July 2005

Ratio Decidendi

The Court held that the trees were part of the land (not presently chattels) and the parties' sale contract and conduct created an equitable interest in favour of RCL/Hallidays to be given effect by a forestry right; that equitable interest was unregistered and therefore did not have priority over subsequently registered mortgages, but the Hallidays established a reasonably arguable in personam/estoppel claim and therefore the caveat should not be removed at this stage; declarations that the forestry is a chattel or owned free of the Bank were refused; s105 and indefeasibility did not mandate removal of the caveat given the arguable equitable claim and unresolved in personam issues.

Court Disposition

Court declined to make declarations sought by the Hallidays and declined to order removal of the caveat; caveat remains pending further in personam proceedings; leave reserved to Bank to apply further; costs to lie where they fall.

Orders

  • Declarations sought that forestry is a chattel and that Hallidays own the forestry are refused
  • Order removing the caveat is refused; caveat remains on title