MAWHINNEY AS TRUSTEE OF BOULDER TRUST v NAGS HEAD HORSE HOTEL LTD [2017] NZHC 455

MAWHINNEY AS TRUSTEE OF BOULDER TRUST v NAGS HEAD HORSE HOTEL LTD [2017] NZHC 455

The application for stay was dismissed because the caveat removal was correctly ordered—Mawhinney lacked the contractual status as lessee required to support a caveatable interest—furthermore the applicant's proposed relief impermissibly sought to restrain the Land Registry and would unjustly prejudice purchaser and mortgagee rights; the balance of convenience favoured respondents given delay, prejudice and low prospects of success on appeal.

Citation
[2017] NZHC 455
Parties
First Plaintiff: Peter William Mawhinney as Trustee of Boulder Trust; Second Plaintiff: Peter William Mawhinney as Trustee of the Waitakere Forest Land Trust; Third Plaintiff: Peter William Mawhinney as Trustee of Forest Trust; Defendant / Applicant: Nags Head Horse Hotel Limited; Second Respondent: Forest Trustee Limited (in liquidation); Third Respondent: Sixty-Six Auckland Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 March 2017
Procedural Posture
Application for Stay of Execution of Judgment and Interim Relief / Interim Hearing and Judgment Dismissing Stay Application (15 March 2017)
Outcome
Application for stay of execution and interim relief dismissed (15 March 2017); costs awarded to Nags Head Horse Hotel Limited on a category 2B basis with disbursements fixed by the Registrar.
Legal Topics
Stay of Execution, Mortgagee Power of Sale, Caveat Removal, Indefeasibility of Title, Restraint on Land Registry, Balance of Convenience
Property Law Civil Procedure Equity Land Registration Appeal Procedure Stay of Execution Mortgagee Power of Sale Caveat Removal +3 more

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Parties

Peter William Mawhinney as Trustee of Boulder Trust

First Plaintiff

Peter William Mawhinney as Trustee of the Waitakere Forest Land Trust

Second Plaintiff

Peter William Mawhinney as Trustee of Forest Trust

Third Plaintiff

Nags Head Horse Hotel Limited

Defendant / Applicant

Forest Trustee Limited (in liquidation)

Second Respondent

Sixty-Six Auckland Limited

Third Respondent

Procedural Posture

Application for Stay of Execution of Judgment and Interim Relief / Interim Hearing and Judgment Dismissing Stay Application (15 March 2017)

Legal Issues

  1. 1 Whether a stay of execution should be granted pending appeal
  2. 2 Whether the caveat lodged by Mawhinney disclosed a caveatable interest
  3. 3 Whether the court can order the Land Registry to refrain from registering documents

Ratio Decidendi

The application for stay was dismissed because the caveat removal was correctly ordered—Mawhinney lacked the contractual status as lessee required to support a caveatable interest—furthermore the applicant's proposed relief impermissibly sought to restrain the Land Registry and would unjustly prejudice purchaser and mortgagee rights; the balance of convenience favoured respondents given delay, prejudice and low prospects of success on appeal.

Court Disposition

Application for stay of execution and interim relief dismissed (15 March 2017); costs awarded to Nags Head Horse Hotel Limited on a category 2B basis with disbursements fixed by the Registrar.

Orders

  • Application for stay of execution and interim relief dismissed
  • Nags Head Horse Hotel Limited entitled to costs on a category 2B basis and disbursements as fixed by the Registrar