TAYLOR JADE SCHMIDT, ANTHONY MIKHAL SCHMIDT V EBADA PROPERTY INVESTMENTS LIMITED, B P GARRITY AND R N HAIR HC AK CIV 2012-404-001793

TAYLOR JADE SCHMIDT, ANTHONY MIKHAL SCHMIDT V EBADA PROPERTY INVESTMENTS LIMITED, B P GARRITY AND R N HAIR HC AK CIV 2012-404-001793

The present statement of claim is a virtual replication of an earlier proceeding that had been considered and dismissed in material respects; nothing material or new has been pleaded that would allow the plaintiffs to circumvent the protection afforded to the registered purchaser by s 182 LTA or to establish a viable claim against Hair; accordingly the claims against Hair are irreparable and struck out, and the refiled proceeding is an abuse of process as against Ebada and Garrity and is struck out (claims against Ebada and Garrity remain in the earlier proceeding).

Citation
openlaw-5a9f1bce_7d4b_40bb_8e5b_af33da91cda9.pdf
Parties
First Plaintiff: Taylor Jade Schmidt; Second Plaintiff: Anthony Mikhal Schmidt; First Defendant: Ebada Property Investments Limited; Second Defendant: Brian Patrick Garrity; Third Defendant: Robert Noel Hair
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 September 2012
Procedural Posture
Civil Property/title Dispute / Summary Judgment/strike Out Application
Outcome
Proceeding CIV 1793 struck out as against all defendants; claims against Hair dismissed with summary judgment and struck out; claims against Ebada and Garrity to remain in the earlier proceeding (CIV 4752/CIV 4752)
Legal Topics
Indefeasibility of Title, Fraud Exception (s182 Lta), Breach of Trust, Knowing Assistance, Strike Out for Abuse of Process, Summary Judgment Test, Interim Injunction
Land Law Equity Civil Procedure Injunctions Bankruptcy/adjudication Indefeasibility of Title Fraud Exception (s182 Lta) Breach of Trust +4 more

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Parties

Taylor Jade Schmidt

First Plaintiff

Anthony Mikhal Schmidt

Second Plaintiff

Ebada Property Investments Limited

First Defendant

Brian Patrick Garrity

Second Defendant

Robert Noel Hair

Third Defendant

Procedural Posture

Civil Property/title Dispute / Summary Judgment/strike Out Application

Legal Issues

  1. 1 Whether the statement of claim discloses any reasonably arguable cause of action against the third defendant (Hair)
  2. 2 Whether the present proceeding CIV 1793 is a duplicate and abuse of process in relation to earlier proceedings (including CIV 4752) against Ebada and Garrity
  3. 3 Whether s 182 Land Transfer Act 1952 protects the registered purchaser from the plaintiffs' fraud/equitable claims

Ratio Decidendi

The present statement of claim is a virtual replication of an earlier proceeding that had been considered and dismissed in material respects; nothing material or new has been pleaded that would allow the plaintiffs to circumvent the protection afforded to the registered purchaser by s 182 LTA or to establish a viable claim against Hair; accordingly the claims against Hair are irreparable and struck out, and the refiled proceeding is an abuse of process as against Ebada and Garrity and is struck out (claims against Ebada and Garrity remain in the earlier proceeding).

Court Disposition

Proceeding CIV 1793 struck out as against all defendants; claims against Hair dismissed with summary judgment and struck out; claims against Ebada and Garrity to remain in the earlier proceeding (CIV 4752/CIV 4752)

Orders

  • The claim against Robert Noel Hair is struck out
  • Proceeding CIV 1793 is struck out as an abuse of process in respect of Ebada Property Investments Limited and Brian Patrick Garrity (claims against them to continue, if at all, in the pre-existing proceeding)