WESTPAC NEW ZEALAND LIMITED V NGA URI WHAKATIPURUNGA O NGARAE (INC) HC AK CIV 2008-404-008345

WESTPAC NEW ZEALAND LIMITED V NGA URI WHAKATIPURUNGA O NGARAE (INC) HC AK CIV 2008-404-008345 19 December 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2008-404-008345UNDER the Land Transfer Act 1952 IN THE MATTER OF an application to remove Caveat No 7903711.2 pursuant to section 143 of the Land Transfer Act 1952 BETWEEN WESTPAC NEW ZEALAND LIMITED Applicant AND NGA URI WHAKATIPURUNGA O NGARAE (INC) Respondent Hearing: 19 December 2008 Appearances: R Johnson for applicant No appearance for respondent Judgment: 19 December 2008ORAL JUDGMENT OF ASSOCIATE JUDGE ROBINSONThis judgment was delivered by me on 19 December 2008 at 4.30 pm, Pursuant to Rule 540(4) of the High Court Rules Registrar/Deputy Registrar Date Solicitors: Minter Ellison Rudd Watts, PO box 3798, Auckland Simpson Grierson, Private Bag 92518, Auckland[1] On 24 November 2008 for reasons contained in the oral judgment I delivered at that time, I directed that a caveat lodged by the respondent in these proceedings be removed. In coming to that conclusion, I did so on the basis that the respondent could not establish any interest in the property concerned that would defeat the interest of the applicant. The applicant has an interest as mortgagee under a mortgage registered against the title to the property. The registered proprietor Bronwyn Gay Haulser is in default. The mortgagee has exercised its powers, arranged a mortgagee sale and is anxious to proceed with settlement. [2] These proceedings arise out of a further caveat lodged by the respondent. That caveat registered on 26 November 2008, two days after I delivered my decision, claims an estate or interest in a cestui que trust pursuant to part 13 of the Te Ture Whenua Mäori Act 1993 under which the respondent is beneficiary and Bronwyn Gay Hausler is trustee. [3] The address for service of the caveator, being the respondent, in the caveat that was lodged was given at Ngä uri Whakatipurunga o Ngareae (inc) PO Box 176 Katikati, New Zealand. According to the search of the caveat, the signature of the caveator is that of Sione Tua Tavaki Fonua as a representative of the caveator. The applicant has had considerable difficulties in arranging service of this application for an order removing the caveat. Mr Fonua who at one time was noted as the solicitor for the respondent has refused to accept service claiming he no longer acts for the respondent. However, the documents were duly served by leaving them at the address of Kevin Bluegun at 41 Beach Road, Katikati on 18 December 2008. According to Mr Leath, the person who served the documents, he had reliable confidential information that the address at 41 Beach Road, Katikati is known in the local community as "the resource centre" and was described as the offices of the respondent incorporation, Kevin Bluegun being one of their kaumatua. [4] The applicant has also effected service by transmitting the documents to Mr Fonua. The transmission was by facsimile and those documents were duly dispatched in this manner on 18 December 2008.[5] In the circumstances, having regard to the need to determine these proceedings expeditiously and having particular regard to the lack of specificity provided by the respondent in the caveat that was lodged as to the respondent's address for service, I am prepared to deal with these proceedings on the basis that service has been effected in the way I have outlined earlier in this judgment. [6] The lodging of a caveat does have a serious impact on the rights of the registered proprietor and those claiming under the registered proprietor. Whilst the purpose of the caveat is to provide some protection for the caveator, this should not be at the unnecessary expense of the registered proprietor and others claiming under the registered proprietor. The legislation makes it clear that those claiming an interest from the registered proprietor and the registered proprietor should have speedy access to the courts so that the delay in determining their rights to the property do not cause them unnecessary loss. [7] The caveat although claiming a different interest from the interest claimed by the respondent in the caveat I discharged on 24 November 2006 is clearly lodged with the intention of frustrating my earlier decision. In my decision I made it clear that any rights conferred under the Te Ture Whenua Mäori Act 1993 could not affect the jurisdiction of this Court to make orders relating to the caveat. That jurisdiction being founded in the Land Transfer Act 1952. [8] Evidence has now been produced to the effect that the respondent is not an incorporated society. There is no record of the respondent being incorporated under the Companies Act. Furthermore, there is no record of the respondent being recognised as an incorporated society or other entity by the Mäori Land Court. I doubt therefore whether the respondent exists in law and there are certainly grave reservations as to whether the respondent is entitled to lodge the caveat simply because of the fact that there appears to be no legal basis for recognition of the respondent. Be that as it may, I am also satisfied that the respondent can have no interest in this property that can interfere with the rights of the applicant. [9] The applicant as mortgagee has been registered on the title as mortgagee for some considerable time. The applicant clearly obtained those rights under themortgage with the registered proprietor. Any rights that the respondent may claim to have must be subject to the applicant's rights. In any event, the respondent certainly had not made known by lodging a caveat of its claim to rights to this property prior to the applicant exercising its rights as mortgagee and effecting a mortgagee sale. Consequently, there can be no justification for permitting the respondent to prevent the purchaser who obtained the property under the mortgagee sale from proceeding to register the transfer and taking possession of the property. [10] For the reasons I have given therefore, there will be an order removing the caveat number 7999227.1 in terms of the application filed. Because there is considerable doubt as to the legal existence of the respondent, I will not make any order for costs. I will reserve leave for the applicant to apply for any order for costs. _______________________Associate Judge Robinson