SADIQ & BEGUM V AYER PROPERTIES LTD CA CA88/05
The stay was declined because, on the material before the Court, there was no caveatable interest to sustain the caveat (the sale agreement was not on foot due to cancellation or accepted repudiation), the Consent Order had expired on failure to settle by its specified date, and the only remedy remaining was damages...
Source-derived case information.
- Citation
- openlaw-7ce58af0_4fde_4c1b_84d0_54c6f99e89d6.pdf
- Parties
- Appellant: Mohammed Sadiq; Appellant: Shamina Begum; Respondent: Ayer Properties Limited
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 31 May 2005
- Procedural Posture
- Appeal (application for Stay of Execution) / Application for Stay Pending Appeal
- Outcome
- Application for stay of execution declined; costs awarded to respondent.
- Legal Topics
- Caveat, Stay of Execution, Specific Performance, Damages, Consent Order Expiry
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Sadiq
Appellant
Shamina Begum
Appellant
Ayer Properties Limited
Respondent
Procedural Posture
Appeal (application for Stay of Execution) / Application for Stay Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted
- 2 Whether the appellants have a caveatable interest to sustain the caveat
- 3 Whether the sale and purchase agreement remains on foot or has been validly terminated or repudiated
Ratio Decidendi
The stay was declined because, on the material before the Court, there was no caveatable interest to sustain the caveat (the sale agreement was not on foot due to cancellation or accepted repudiation), the Consent Order had expired on failure to settle by its specified date, and the only remedy remaining was damages which the caveat would not affect.
Court Disposition
Application for stay of execution declined; costs awarded to respondent.
Orders
- Stay application declined.
- Costs of $1,500 plus usual disbursements payable to the respondent.
Full Case Text
Judgment text and source record
1 paragraphs
SADIQ & BEGUM V AYER PROPERTIES LTD CA CA88/05 31 May 2005IN THE COURT OF APPEAL OF NEW ZEALAND CA88/05BETWEEN MOHAMMED SADIQ & SHAMINA BEGUM Appellant AND AYER PROPERTIES LIMITED Respondent Hearing: 27 May 2005 (by telephone) Court: Glazebrook, Hammond and O'Regan JJ Counsel: J E Dorbu for Appellant R O Parmenter for Respondent Judgment: 31 May 2005JUDGMENT OF THE COURT The application for a stay is declined. Costs of $1,500, plus usual disbursements, are payable to the respondent.____________________________________________________________________REASONS(Given by Glazebrook J) [1] This was an application to stay execution of the judgment of Laurenson J, delivered in the High Court at Auckland on 20 May 2005, dismissing an originating application by the applicants dated 1 December 2004 that a caveat numbered 6207550.1 in the North Auckland Land Registry be sustained, pending the hearing of the appeal against that decision.[2] On 27 May 2005, we indicated that we would decline the application with reasons to be given later. The reasons are as follows: (a) The only relief sought in the proceedings related to the sale and purchase agreement is damages. That relief is not affected by the maintenance or otherwise of the caveat; (b) It does not appear to us, on the material currently before us, that there is a caveatable interest that would justify the caveat. The agreement for sale and purchase between the parties does not appear to be still on foot, either because the agreement has been validly cancelled by the respondent or because the respondent's repudiation has been accepted by the appellant; (c) Any order or agreement that the caveat be sustained until resolution of the issues between the parties cannot survive where there is no interest capable of sustaining it; (d) The Consent Order of 23 February 2005 on its face expired on 5 April 2005 when settlement did not take place by that date. There is therefore no subsisting order for specific performance. [3] We order costs of $1,500, plus usual disbursements, in favour of the respondent. [4] If the substantive appeal proceeds we consider that it should be listed before a differently constituted Court.Solicitors: Murdoch Hall & Co Graham & Co