New Zealand Case Law: Decisions & Judgments

Topic

Priority of interests

Legal area

Court

9 Dec 2022

ZHONG v WU & ORS [2022] NZHC 3322

Citation

[2022] NZHC 3322
Court

High Court

The caveators demonstrated clearly arguable equitable interests in the properties and, given existing High Court findings (Jagose J) favouring specific performance and the fact the caveats were lodged prior to transfer of the mortgage interest, the applicant failed to show the caveators would derive no legitimate benefit from maintaining their caveats; accordingly the court refused to remove the caveats and dismissed the applications.
28 May 2019

GP96 LIMITED v F M CUSTODIANS LIMITED [2019] NZHC 1183

Citation

[2019] NZHC 1183
Court

High Court

PVG's registered second mortgages predate the alleged lease and there is no evidence PVG or its predecessor consented to the lease or its assignment; under the Land Transfer Act a mortgagee sale vests title in the purchaser free of unenforceable later interests, therefore GP96's caveat is unsustainable and must be removed and the 2011 interim injunction lifted.
13 Dec 2017

WESTPAC NZ LTD v LAU [2017] NZHC 3106

Citation

[2017] NZHC 3106
Court

High Court

Service by email and by posting to the post office box specified in the caveat complied with the rules (or could be deemed effective); the registered mortgage predated the alleged lease and caveat and Westpac had not consented to that lease, therefore Westpac's mortgage and power of sale had priority and the caveator could not establish a reasonably arguable priority; accordingly the caveat was removed and costs awarded to Westpac.
17 Aug 2017

MULES v R CAMERON AND SHORTTS ENGINEERING & PLUMBING SUPPLIES LTD [2017] NZHC 1966

Citation

[2017] NZHC 1966
Court

High Court

Section 105 LTA operates to free a purchaser at a mortgagee sale from leases unless the mortgagee had subordinated its rights or consented to the lease; there was no evidence BNZ consented and providing a lease copy to prospective purchasers did not constitute consent, therefore plaintiffs are not bound by the unregistered lease and the defendant's continued storage of plant and equipment is trespass.
27 Jun 2016

BOTANY LAND DEVELOPMENT LTD v PALLISTER [2016] NZHC 1419

Citation

[2016] NZHC 1419
Court

High Court

The proceeding was adjourned to 13 February 2017 because related Environment Court proceedings, and potential appeals, could materially affect pleadings and evidence; to avoid a part-heard trial and attendant prejudice and wasted costs the High Court exercised its case management discretion to vacate the October hearing and allocate trial time in February 2017.
23 Jun 2016

BOTANY LAND DEVELOPMENT LTD and ANOR v PALLISTER and ORS [2016] NZHC 1371

Citation

[2016] NZHC 1371
Court

High Court

The Court refused to exclude the trustees' expert evidence in bulk, ruling most challenged expert material admissible and leaving weight to the trial judge, but excluded paragraphs 67–73 of Mr Nolan's first brief as inadmissible legal submission on a READT decision; the trustees' application for an undertaking as to damages in support of the Council's caveat was refused for lack of a proper jurisdictional and discretionary basis given the prior caveat proceedings, settlement and appropriate alternative remedy by pleading a cross-claim (with leave).
17 Nov 2015

LEPIONKA & COMPANY INVESTMENTS LIMITED v ANDREW WILLIAM CLYDE COLTART [2015] NZHC 2849

Citation

[2015] NZHC 2849
Court

High Court

The court held Coltart had arguable caveatable interests (option and easements) but there was no evidence the mortgagee consented to those interests under s105 LTA; the mortgagee validly exercised statutory powers including cancellation under s178(2) PLA and adoption under s179 PLA and Coltart was not owed the s176 PLA duty as a purchaser from the mortgagor; allegations of bad faith or LTA fraud were arguable but insufficient to displace the registered mortgage; exercise of discretion under s143 were warranted to order removal of caveats upon presentation for registration of transfers or subd…
6 May 2013

MAYES V SOUTHERN CROSS FINANCE LIMITED HC AK CIV-2013-404-10

Citation

openlaw-6d732d2e_e0b6_474b_8478_bcc2bba0eea9.pdf
Court

High Court

The caveat must be sustained because the applicant has established an arguable triable issue (defective initial disclosure and valid cancellation under the Credit Contracts Act 1981) that could eliminate the mortgage debt; accordingly the court grants a conditional order preserving the caveat pending the applicant commencing and diligently prosecuting proceedings to resolve whether any money is due under the mortgage.
13 Feb 2013

PEPPER NEW ZEALAND (CUSTODIANS) LIMITED V BUSCH HC HAM CIV-2012-419-1230

Citation

openlaw-01c82a26_23ff_4678_9bfa_a047e2638f39.pdf
Court

High Court

The registered mortgagee was entitled to possession because the mortgage predated all subsequent sale and lease transactions, no consent was given to those transactions, and the defendants advanced no credible evidential basis for a defence; accordingly summary judgment was appropriate and an order for possession was granted with 21 days to vacate.
10 May 2012

WESTPAC NEW ZEALAND LIMITED V LAW HC AK CIV-2012-404-991

Citation

openlaw-8cacd471_919c_4e6b_a095_872a9212ba30.pdf
Court

High Court

Westpac's registered mortgages and lack of consent to the caveator's agreements mean Westpac is entitled to exercise its power of sale and transfer title free of the caveator's claimed interests; because the caveats serve no useful purpose and the caveator's interests are subordinate, the court ordered removal of the caveats upon Westpac lodging an e-dealing transfer; costs awarded against Set Kien Law and further proceedings ordered to determine costs against the non-party orchestrator (Augustine Lau).