MORTGAGE HOLDING TRUST COMPANY LIMITED V NGA URI WHAKATIPURUNGA O NGARAE (INC) HC AK CIV 2009-404-001876

MORTGAGE HOLDING TRUST COMPANY LIMITED V NGA URI WHAKATIPURUNGA O NGARAE (INC) HC AK CIV 2009-404-001876 8 April 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2009-404-001876UNDER the Land Transfer Act 1952 IN THE MATTER OF an application to remove Caveat no 7865366.1 pursuant to s143 of the Land Transfer Act 1952 BETWEEN MORTGAGE HOLDING TRUST COMPANY LIMITED Applicant AND NGA URI WHAKATIPURUNGA O NGARAE (INC) Respondent Hearing: 8 April 2009 Counsel: EC Gellert and SW Lynds for applicant No appearance by the respondent or by the solicitor, Mr S T Fonua Judgment: 8 April 2009 at 3:10pm(ORAL) JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application that caveat be removed]Solicitors: Simpson Grierson, Private Bag 92 518, Auckland for applicant[1] The applicant applies to remove a caveat. The application is made in reliance on s 143 of the Land Transfer Act 1952. [2] The caveat appears to have been lodged on behalf of a non-existent entity. The applicant has carried out an extensive search through all appropriate registers and cannot find evidence of the existence of the respondent. The caveat was lodged by a solicitor, Sione T Fonua, of Unit 2/145 Wellesley Street West, CBD, Auckland. Mr Fonua signed the caveat as the duly authorised agent of the caveator. This application has been served on Mr Fonua. I am satisfied that all appropriate steps to bring this application to the attention of the persons who lodged the caveat have been taken. [3] There is, in fact, no need for me to investigate further the existence of the caveator because there is another basis that clearly justifies protection being given to the mortgagee applicant's position in this case. [4] The caveat seeks to protect an interest obtained under a sale and purchase agreement dated 20 June 2008. [5] The applicant holds a registered mortgage. It was registered against the title on 1 August 2007. The applicant has now exercised its power of sale following a default having been made by the registered proprietor. The applicant is anxious to register, as a result of the exercise of that power of sale, a transfer to the purchaser. [6] The registered mortgagee's title is paramount. That includes the mortgagee's right to exercise its power of sale: Congregational Christian Church of Samoa Henderson Trust Board v Broadlands Finance Ltd [1984] 2 NZLR 704. [7] Section 105 of the Land Transfer Act 1952 provides:105 Transfer by mortgageeUpon the registration of any transfer executed by a mortgagee for the purpose of [exercising a power of sale over any land], the estate or interest of the mortgagor therein expressed to be transferred shall pass to and vest in the purchaser, freed and discharged from all liability on account of the mortgage, or of any estate or interest except an estate or interest created byany instrument which has priority over the mortgage or which by reason of the consent of the mortgagee is binding on him.[8] Accordingly, the interest claimed in the caveat has no priority and is entitled to no protection in respect of the registration of any transfer executed by a mortgagee for the purpose of exercise the mortgagee's power of sale over the land. In short, the registered proprietor's interest in the land ends with the transfer by the mortgagee to the mortgagee's purchaser. From that point in time nothing will support a caveat. When that position is taken into account the appropriate exercise of jurisdiction under s 143 of the Land Transfer Act 1952 is to make an order which provides for the lapsing of the caveat and its removal from the title upon the registration of a transfer by the mortgagee to the mortgagee's purchaser pursuant to the power of sale. [9] I order accordingly. [10] Costs are reserved, including costs against Mr Fonua. [11] Counsel advised me that there are identical claims for costs against Mr Fonua in respect of similar applications. It is desirable that these be dealt with together for consistency. I ask the Registrar to take that into account when allocating any fixture in respect of the fixing of these costs. _____________________ JA Faire Associate Judge