New Zealand Case Law: Decisions & Judgments

Topic

Equitable charge

Legal area

Court

28 Apr 2023

ZHAO v ZHENG [2023] NZHC 983

Citation

[2023] NZHC 983
Court

High Court

The agreement did not support an arguable equitable mortgage because it did not furnish the right to compel registration (it required the respondent to sell rather than grant a mortgage); however the agreement was reasonably arguable as giving rise to an equitable charge identifying the property as security for the debt; the caveat as lodged was defective because it claimed an equitable mortgage rather than an equitable charge, so the caveat was removed, but leave under s146 was granted to lodge a second caveat claiming an equitable charge provided the claimant files substantive proceedings f…
22 Feb 2023

PAISI JIANG v HIGHRISE APARTMENTS LIMITED [2023] NZHC 249

Citation

[2023] NZHC 249
Court

High Court

Applicants (Highrise and GL Group) have standing under s143 as persons who wish to register instruments; however the caveator (Jiang) has established a reasonably arguable caveatable interest in the form of an equitable mortgage/charge under the loan and security agreement; given that arguable interest and the risk of prejudice to Jiang, the Court will not exercise its residual discretion to remove the caveats; accordingly the caveats must not lapse.
3 Mar 2022

THE VINTAGE AVIATOR LIMITED v DEMARCO [2022] NZHC 334

Citation

[2022] NZHC 334
Court

High Court

Costs awarded largely in favour of the first plaintiff on a 2B basis with disbursements allowed; specific Band C allowances granted for commencement and extensive discovery; certification for second counsel and a conversion fee allowed; limited uplifts imposed (10% uplift on 2B costs for the debarring application, 5% uplift limited for failure to accept the May 13 2021 settlement offer with temporal limitation, and 10% uplift on 2B costs for the strike‑out application) to reflect defendants' discovery misconduct and improper pleadings; no indemnity costs ordered overall; costs awarded against…
30 Nov 2021

NIE and MA v GUAN (costs) [2021] NZHC 3242

Citation

[2021] NZHC 3242
Court

High Court

Applicants succeeded because respondent admitted signing the IOU and the court found a reasonably arguable mortgage agreement or, at minimum, an equitable charge supporting the caveatable interest; accordingly applicants were entitled to costs which were properly assessed on the 2B scale and fixed at $14,340 plus disbursements $797.
10 Aug 2021

NIE and MA v GUAN [2021] NZHC 2058

Citation

[2021] NZHC 2058
Court

High Court

The IOU, in expressly agreeing to place the named properties 'as securities' and consenting to the lodging of a caveat, establishes a present real-security interest in land (either an agreement to mortgage or an equitable charge) sufficient to found a reasonably arguable caveatable interest; accordingly the caveat must not lapse pending substantive resolution.
30 Mar 2021

COMBINED PROPERTY MAINTENANCE LTD v SINGH and MISHERWAN [2021] NZHC 621

Citation

[2021] NZHC 621
Court

High Court

The applicant discontinued the originating caveat application and must pay respondents' costs on the ordinary 2B scale plus disbursements; indemnity costs and costs on costs were refused because the lack of merit in the caveat claim was not obvious and incontrovertible and rejecting an early settlement offer did not amount to flagrant misconduct; costs should not be held in court pending District Court proceedings.
16 Mar 2021

DEVELOPMENT CONSTRUCTION COMPANY LIMITED v MACKENZIE [2021] NZHC 546

Citation

[2021] NZHC 546
Court

High Court

The reservation/retention of title clause relied on did not establish a caveatable beneficial interest or equitable charge in the land; there was no express contractual provision giving a right to enter and remove fixtures that could support an equitable interest, and the adjudicator's charging order related only to a small sum that has been paid; accordingly Development Construction Ltd failed to show a reasonably arguable caveatable interest and the caveat must be removed.
20 Nov 2020

NORTH SHORE AERO CLUB INC v BLACK RIVER TRUSTEES LTD [2020] NZHC 3070

Citation

[2020] NZHC 3070
Court

High Court

Aero Club failed to establish a prima facie case of fraud under the Land Transfer Act 2017 because, although Black River (through its director) had actual knowledge of the Aero Club's equitable interest, there is no credible evidence of dishonest conduct or an intention at the time of registration to defeat that interest; the sale to Black River had a commercial justification (to discharge a superior mortgage) and left no practicable benefit to the Aero Club, so the caveat was ordered removed (effective 14 days).
10 Feb 2020

ERU & ORS v HUGHES & ORS [2020] NZHC 122

Citation

[2020] NZHC 122
Court

High Court

The court held it would not rewrite the 1996 share register to treat the Tikitere Trust entry as a valid shareholding in place of an individual; the entry of a trust on the register was a legal nullity so the written joint venture as structured never took effect, but the plaintiffs may have equitable causes (joint venture by conduct or fiduciary duties) that support their claims and therefore the pleading should not be struck out but repleaded.
31 Jul 2019

PVG SECURITIES TRUSTEE LTD v 100 INVESTMENTS LTD [2019] NZHC 1847

Citation

(2019) 20 NZCPR 280
Court

High Court

Section 183(4) of the Property Law Act 2007 meant that when PFSL validly assigned the insured rights in the mortgagee sale to 100 Investments, any equitable charge PVG claimed over the insurance proceeds was extinguished and the purchaser took the rights free of that subsequent encumbrance; accordingly the plaintiff's declarations were refused.