COETZEE V BANK OF NEW ZEALAND HC WHA CIV-2011-488-872

COETZEE V BANK OF NEW ZEALAND HC WHA CIV-2011-488-872 [18 April 2012]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCIV-2011-488-872[2012] NZHC 730UNDER the Land Transfer Act 1952 Section 145AIN THE MATTER OF of an application that a caveat not lapseBETWEEN GERT-MULLER COETZEEApplicantAND BANK OF NEW ZEALANDRespondentHearing: On the PapersCounsel: G-M Coetzee in personPL Rice for RespondentJudgment: 18 April 2012JUDGMENT (NO. 2) OF TOOGOOD JThis judgment was delivered by me on 18 April 2012 at 4:00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarSolicitors:N Robertson, Sanderson Weir, Auckland: Nicola.robertson@sandersonweir.comCopy:P Rice, Auckland: phillip.rice@aspx.co.nzMr G-M Coetzee, PO Box 11062, Whangarei[1] Gert-Muller Coetzee has applied for the recall of the judgment which I issued on 27 January 2012,1 dismissing his application under s 143 of the Land Transfer Act 1952 ("the Act") for an order that Caveat 8934232.1 not lapse.[2] The respondent bank ("the Bank") held a mortgage over the property at 71 Manganese Point Road, RD 4, Whangarei, against the title to which the caveat was registered by Mr Coetzee. The Bank applied to the District Land Registrar under s 145A, Land Transfer Act 1952, for the lapse of the caveat, so that it could register a transfer of the property to third parties who had purchased the property in a mortgagee sale.[3] In my judgment I concluded first that, on the evidence before the Court, the caveat had lapsed because there was no evidence that the Registrar had been notified within the prescribed period that the applicant's application that the caveat not lapse had been made.[4] Second, I upheld the argument for the Bank that, on the authority ofCanterbury Finance Ltd v Sagar Trust Ltd,2 the Bank was entitled to disregard a purported sale of the property by the mortgagor, Ms Hawkins, and proceed to register the transfer of the title to the purchasing third parties.[5] Following delivery of the judgment, Mr Coetzee drew to my attention correspondence on the Court file (but not exhibited as evidence at the hearing or referred to) which he said established that he had, in fact, given notice within the requisite period that an application had been made by him as caveator for an order that the caveat not lapse.[6] I have received and considered further affidavits on behalf of the Bank and Mr Coetzee in respect of the application to recall the judgment, and submissions have been filed.1 Coetzee v Bank of New Zealand HC Whangarei, CIV-2011-488-872 MNC [2012] 21, 27 January 2012.2 Canterbury Finance Ltd v Sagar Trust Ltd (1977) 3 NZ ConvC 192,571 at 192,577.[7] I am satisfied on the material now available to me that the judgment of 27 January 2012 was founded, in part, on a factual error. I accept that there is sufficient evidence of compliance by Mr Coetzee with the obligation, within the prescribed period referred to in s 145A(3) of the Act, to give notice to the Registrar that an application had been made by him for an order that the caveat not lapse.[8] In other circumstances, that would justify recalling the judgment and considering the matter afresh.[9] As I pointed out in my Minute dated 1 February 2012, however, the fact that Mr Coetzee's application was dismissed on a second ground, not affected by the factual error just referred to, may result in the application to recall the judgment being declined.[10] There is nothing in the material submitted by Mr Coetzee since delivery of the judgment on 27 January 2012 which persuades me that I was wrong in taking the view I did on the second, substantive, ground for dismissing his application. I remain firmly of the view that, on the authority of Canterbury Finance Ltd v Sagar Trust Ltd, the Bank was entitled to disregard the purported sale of the property by the mortgagor and proceed with its proposed sale to the third parties. That transaction has now been given proper effect and the subject property is vested in the names of the purchasers.[11] In the circumstances, the application to recall the judgment is declined.[12] The respondent is entitled to costs. Any application for costs should be filed and served by the Bank on or before Wednesday, 9 May 2012. Any submissions in reply shall be filed and served by Mr Coetzee no later than Wednesday,30 May 2012. The matter will then be dealt with on the papers.................................................... Toogood J