New Zealand Case Law: Decisions & Judgments | LexChat

Topic

Residual discretion to remove caveat

Legal area

Court

28 Oct 2021

ADVANCED DESIGN AND BUILD LTD v PORTER [2021] NZHC 2889

Citation

[2021] NZHC 2889
Court

High Court

Clause 12.5 created an immediate agreement to mortgage on execution of the Building Contract, giving rise to an equitable mortgage and a caveatable interest; the second paragraph set out the form and enforcement mechanism and was not a condition precedent; the caveat should not be removed because the applicant's legitimate equitable interest (including disputed amounts, contractual interest and costs) would not be adequately protected by the offers made, and therefore the caveat is sustained subject to a condition requiring arbitration of the disputed monetary issues.
14 Jun 2013

WR ROBERT and Z ROBERT as trustees of the ROSS ROBERT FAMILY TRUST v FOXTON EQUITIES LIMITED [2013] NZHC 1209

Citation

[2013] NZHC 1209
Court

High Court

Because the facts were disputed and applicants established a reasonably arguable case that clause 15(b) was satisfied or waived (and the respondent's conduct could estop denial), the caveat could not be removed summarily; the caveat is therefore to be preserved subject to conditions requiring the applicants to commence and diligently prosecute specific performance proceedings and with leave reserved to the respondent to seek lapse later if conditions set out are met.