MALCOLM v BEAZLEY [2014] NZHC 173

MALCOLM v BEAZLEY [2014] NZHC 173

The caveat was set aside because the caveator could not show a registrable, arguable interest: his entitlement to retransfer depended on completing the boundary adjustment and land swap, which he cannot now perform because the relevant land was sold by the mortgagee, and no term could be implied to require retransferral; therefore no caveatable interest existed.

Citation
[2014] NZHC 173
Parties
Applicant: Russell Peter Malcolm; Respondent: Eldon Wayne Beazley; Respondent: Kayemuriel Beazley
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 February 2014
Procedural Posture
Caveat Under Land Transfer Act 1952 / Interim Application to Sustain Caveat
Outcome
Interim order sustaining the caveat set aside; caveat to lapse; costs awarded to respondents
Legal Topics
Caveat, Constructive Trust, Resulting Trust, Boundary Adjustment, Implied Terms, Mortgagee Sale, Costs
Property Law Equity Land Transfer Contract Law Caveat Constructive Trust Resulting Trust Boundary Adjustment +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 4 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Russell Peter Malcolm

Applicant

Eldon Wayne Beazley

Respondent

Kayemuriel Beazley

Respondent

Procedural Posture

Caveat Under Land Transfer Act 1952 / Interim Application to Sustain Caveat

Legal Issues

  1. 1 Whether the caveator has an arguable caveatable interest in 7-9 Lower Jeffs Road
  2. 2 Whether an implied term requiring the purchaser to retransfer the property arises if the vendor cannot complete the boundary adjustment/land swap
  3. 3 Whether the caveat should be removed because the caveator cannot perform the condition precedent

Ratio Decidendi

The caveat was set aside because the caveator could not show a registrable, arguable interest: his entitlement to retransfer depended on completing the boundary adjustment and land swap, which he cannot now perform because the relevant land was sold by the mortgagee, and no term could be implied to require retransferral; therefore no caveatable interest existed.

Court Disposition

Interim order sustaining the caveat set aside; caveat to lapse; costs awarded to respondents

Orders

  • Interim order sustaining the caveat is set aside
  • The caveat registered by the applicant is to lapse