New Zealand Case Law: Decisions & Judgments

Topic

Priority of registered mortgage

Legal area

Court

1 May 2013

ASB BANK LIMITED V LAMBERT HC HAM CIV-2013-419-000204

Citation

openlaw-e523a287_5c7a_4cd9_94bc_2cdb34f6ce2e.pdf
Court

High Court

The caveats were removed because the respondent's asserted purchaser interests were subordinate to the registered mortgagee's rights and were, in any event, extinguished or vested in the Official Assignee upon her adjudication in bankruptcy; accordingly the claimed caveatable interests were not arguable and s143 LTA relief required removal of the caveats; indemnity solicitor-client costs were awarded due to repeated, vexatious misuse of caveats and the respondent's conduct, payable personally and from the trust assets.
4 Jul 2012

WATERHOUSE V WESTPAC NEW ZEALAND LIMITED HC WHA CIV-2012-488-382

Citation

openlaw-ea3cff16_86f8_4590_a350_ba5d1524d7f8.pdf
Court

High Court

The caveat was dismissed because the caveator failed to show a reasonably arguable caveatable interest: the evidence did not establish a buy-back transaction nor a binding sale to Lambert nor an enforceable residential tenancy; the $1 payment did not discharge the mortgage debt; Westpac, as registered first mortgagee, had standing to apply under s145A and its registered interest took priority, so there was no basis to sustain the caveat.
8 Jun 2009

WESTPAC NEW ZEALAND LIMITED V TAPAERURANGI HAPU INC AND ANOR HC HAM CIV 2009-419-000672

Citation

openlaw-0826f050_1357_47d4_a119_136a959a3d4e.pdf
Court

High Court

The caveat claimed no priority to the registered mortgage and therefore could not impede registration of a transfer executed by the mortgagee pursuant to its power of sale; under s143 the court ordered the caveat to lapse and be removed upon registration of that transfer; monetary relief and costs were not ordered because the second respondent is bankrupt and monetary orders are stayed; the discrete request to require naming of members of the first respondent was adjourned to permit legal advice.
24 Nov 2008

WESTPAC NEW ZEALAND LTD V NGA URI WHAKATIPURUNGA O NGARAE (INC) HC AK CIV 2008-404-007298

Citation

openlaw-6b31a598_ae5d_4ac6_9934_353957156da5.pdf
Court

High Court

Because the caveats relied solely on agreements for sale entered into after registration of the mortgages, and because the caveator failed to establish an arguable case (no reliable evidence of repayment or fraud and the mortgage was validly registered), the respondent's interests cannot override the prior registered mortgages; the land is Māori freehold land subject to the Land Transfer Act s10(c); the High Court has jurisdiction to remove the caveats and they must be discharged.

New Zealand Case Law

ASB BANK LIMITED V LAMBERT HC HAM CIV-2013-419-000204

WATERHOUSE V WESTPAC NEW ZEALAND LIMITED HC WHA CIV-2012-488-382

WESTPAC NEW ZEALAND LIMITED V TAPAERURANGI HAPU INC AND ANOR HC HAM CIV 2009-419-000672

WESTPAC NEW ZEALAND LTD V NGA URI WHAKATIPURUNGA O NGARAE (INC) HC AK CIV 2008-404-007298