New Zealand Case Law: Decisions & Judgments

Topic

Fraud exception to indefeasibility

Legal area

Court

29 Aug 2016

BANNOCK v MONACO MANAGEMENT LIMITED [2016] NZHC 2023

Citation

[2016] NZHC 2023
Court

High Court

The Court granted leave to amend the pleadings in the specified respects because the amendments were necessary to determine the real controversy and any prejudice to the defendants could be managed by an adjournment to permit them to recast evidence; accordingly amendments updating the lease status, clarifying the s 37(4) claim as in personam, and clarifying relief (including orders against MML to discharge mortgages and surrender the lease) were allowed, with directions for an adjournment and costs reserved.
12 Feb 2015

JEB MANAGEMENT LIMITED v GRUBZ UNITED WHANAU TRUST [2015] NZHC 157

Citation

(2015) 15 NZCPR 705
Court

High Court

The Trust failed to show a reasonably arguable caveatable interest because it did not establish a reasonably arguable case of land transfer fraud by JEB, and equitable doctrines of knowing receipt cannot be used as an in personam exception to defeat an otherwise indefeasible registered title; accordingly the caveat must be removed.
9 Jun 2011

RARERE v PHILDAGAP LIMITED HC WN CIV- 2011-485-679

Citation

openlaw-07e0bdfe_3bb1_4853_88dc_9c1f773a3ed5.pdf
Court

High Court

Applicants established a reasonably arguable case of an equitable or quasi-equitable easement by implied grant over the area containing the lift equipment and the Court is not satisfied on the material before it that Phildagap holds an indefeasible title that defeats that arguable interest (given unresolved issues about s97's effect and possible fraud); accordingly the caveat must be preserved pending substantive determination.
2 Sept 2008

BURMEISTER V O'BRIEN AND ORS HC TAU CIV 2005-470-0396

Citation

openlaw-46022422_7b3d_4f1f_9584_00d5404f6c51.pdf
Court

High Court

Associate Judge's strike-out decision is correct and is affirmed: the ASB mortgage was not a security interest taken in connection with the buy-back transaction for purposes of the CCCF Act; the CCCF Act does not implicitly override the indefeasibility protections for innocent bona fide mortgagees; and the sixth defendant's knowledge acquired while acting for the trustees under a limited ministerial mandate cannot be imputed to ASB, so the fraud exception to indefeasibility does not apply.
8 Apr 2008

DOLLARS & SENSE FINANCE LIMITED V REREKOHU NATHAN SC 31/2007

Citation

DOLLARS & SENSE FINANCE LIMITED V REREKOHU NATHAN SC 31/2007
Court

Supreme Court

The Supreme Court held that D & S, through its solicitor's conduct and by entrusting Rodney with obtaining the title, disclosures and signatures, created an agency (including sub-agency) for the limited task of securing execution and witnessing; Rodney's forgery had a sufficiently close connection to that authorised task that it could be treated as within the scope of the agency, so the fraud is attributable to D & S for the purposes of the fraud exception to the Land Transfer Act and the mortgage is therefore defeasible and must be removed from the register.
7 Mar 2007

WALLER AND AGNEW V DAVIES AND ORS CA CA65/05

Citation

openlaw-4fd59d80_1214_4ca7_9c76_52a701e10606.pdf
Court

Court of Appeal

For the ten non-forgery properties the Court found no pleaded or adequately evidenced fraudulent misrepresentation that created an adverse equitable interest at the time of registration; therefore Davies could not be found to have committed Land Transfer fraud against those nonexistent interests and there was no basis to impute his knowledge to innocent mortgagees; accordingly the High Court orders as to those ten properties (including costs orders) were set aside and judgment entered for the respondents; the two forgery claims were struck out by consent and dealt with separately.

New Zealand Case Law

BANNOCK v MONACO MANAGEMENT LIMITED [2016] NZHC 2023

JEB MANAGEMENT LIMITED v GRUBZ UNITED WHANAU TRUST [2015] NZHC 157

RARERE v PHILDAGAP LIMITED HC WN CIV- 2011-485-679

BURMEISTER V O'BRIEN AND ORS HC TAU CIV 2005-470-0396

DOLLARS & SENSE FINANCE LIMITED V REREKOHU NATHAN SC 31/2007

WALLER AND AGNEW V DAVIES AND ORS CA CA65/05