MIRA SAHIB COMPANY LIMITED V PL SAUNDERCOCK HC WN CIV-2012-485-1256

MIRA SAHIB COMPANY LIMITED V PL SAUNDERCOCK HC WN CIV-2012-485-1256 [4 February 2013]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2012-485-1256[2013] NZHC 46BETWEEN MIRA SAHIB COMPANY LIMITEDApplicantAND PAUL LINDSAY SAUNDERCOCKRespondentHearing: 4 February 2013(Heard at Wellington)Counsel: Mr. J. Langford - Counsel for RespondentNo appearance for the ApplicantJudgment: 4 February 2013ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALLSolicitors: G.E. Slevin, Solicitor, Insolvency and Trustee Service, Private Bag 4714, Christchurch 8140Guy and Toby Manktelow, Barristers & Solicitors, PO Box 31-265, Lower Hutt[1] In a judgment given in this Court on 11 September 2012 Associate Judge Doogue made an order sustaining a caveat lodged by the applicant against the property of the respondent on certain conditions. Those conditions included a requirement that the applicant was to commence proceedings to enforce such rights as it considers it has with respect to the property within 4 weeks of the date of that judgment. The order was further conditional upon the applicant prosecuting those proceedings with reasonable expedition.[2] In this 11 September 2012 decision Associate Judge Doogue noted that if the applicant failed to comply with these conditions, the respondent could request to have the matter brought back before the Court so that the order sustaining the caveat could be discharged.[3] The respondent has now requested that this matter be brought back before the Court.[4] As I understand the position, the sole director and shareholder of the applicant company is Mr Mohammed Yunus Sahib (Mr Sahib) who was himself adjudicated bankrupt on 24 September 2012.[5] The applicant company, although not in liquidation, I am told is in the final stages of being struck off the register. As I understand it, the company has no assets and no longer trades. The sole director and shareholder of the applicant, Mr Sahib noted above, although an undischarged bankrupt, has confirmed to the Court that he now supports the removal of the caveat and no longer contends that it should remainon the respondent's title.[6] In similar fashion, the Official Assignee who is now handling the estate of Mr Sahib, has filed a memorandum in this Court dated 29 January 2013 which confirms that, so far as the Official Assignee is concerned, the caveat should be allowed to lapse. In particular the view is held and expressed that the applicant has an adequate remedy in damages.[7] And it does seem also that the original claim which is maintained under the caveat (for completion of a sub-division of the land in question) is acknowledged now as being quite unable to be pursued by the applicant for want of resources.[8] For all the reasons noted above, I am of the clear view that the caveat in question should now lapse and an order to this effect is required. Clearly the strict conditions upon which the order sustaining the caveat made by His Honour Associate Judge Doogue have not been complied with.(a) That said, an order is now made that caveat number 9055217.1 is to lapse effective immediately.[9] And before me, Mr Langford confirms there is no issue as to costs with respect to this matter. There will be no costs order here._______________________________________Associate Judge D.I. Gendall