New Zealand Case Law: Decisions & Judgments

Topic

Unregistered mortgage

Legal area

Court

12 Jun 2017

P S YARROW v P D TENNENT AND G HASSALL AS EXECUTORS OF THE ESTATE OF MELVA DOREEN YARROW [2017] NZHC

Citation

openlaw-bd66cfda_5a5c_4b2c_945e_82c503861c10.pdf
Court

High Court

The applicant failed to establish a reasonably arguable caveatable interest in the properties because the DOFA, arbitral proceedings and claims under the Family Protection Act and Testamentary Promises Act do not create an equitable or proprietary interest in the land; the caveats therefore could not be sustained and no leave to lodge a second caveat was granted.
24 Jun 2015

ASB Bank Limited (398445) v LJ Holdings (No 1) Limited [2015] NZHC 1433

Citation

[2015] NZHC 1433
Court

High Court

The caveat was properly sustained because the applicant held an equitable interest by way of an unregistered mortgage; the respondent's attempt to use s145A via a caveat was inappropriate; applying the ordinary rule in r14.2(a) the unsuccessful respondent must pay the applicant's costs, assessed on the agreed 2B basis at $4,875.50 plus disbursements of $590.
17 Nov 2014

PAUL v PAUL CA621/2013 AND CA25/2014 [2014] NZCA 549

Citation

[2014] NZCA 549
Court

Court of Appeal

The Court allowed the appeal in relation to the first caveat because the appellant's affidavit evidence of a binding arrangement capable of being enforced on the vendor's death together with substantial deposit payments created a reasonably arguable case; the Associate Judge erred by conducting an impermissible trial‑like evaluation of competing evidence rather than determining whether the caveator had shown a reasonably arguable proprietary interest. The second caveat was dismissed because its asserted factual basis lacked a plausible narrative and was unnecessary while the first appeal was…
1 Sept 2014

MESSENGER v STANAWAY REAL ESTATE LTD [2014] NZHC 2090

Citation

[2014] NZHC 2090
Court

High Court

The Court allowed the defendant leave to amend its defence to add the particulars because the proposed particulars were not, on balance, a new theory that would unfairly prejudice trial fairness; the overriding requirement of a just trial and the availability of an adjusted timetable for expert evidence meant the amendment should be permitted.
26 May 2011

KOOKMIN BANK V BOURKE & ANOR HC AK CIV-2011-470-146

Citation

openlaw-fd360b16_533b_4526_9f00_e268dd3708b5.pdf
Court

High Court

The bank succeeded in both proceedings; Bourke pursued meritless arguments and failed to accept the bank's legal position so was ordered to pay increased costs in CIV-2011-470-146 (Category 2 Band B uplifted 200%); Chariot Wheel's case was hopeless and the second caveat was a cynical misuse of the caveat procedure, so both Bourke and Chariot Wheel were ordered to pay the bank's costs on a solicitor-client basis for CIV-2011-404-2186; bank entitled to disbursements.
10 Jun 2010

HENRY & ORS V CLAUDE ROBERT BEET HC AK CIV 2010-404-002167

Citation

openlaw-2d8f2fc8_8c46_4a45_a437_53c016f4ea88.pdf
Court

High Court

The respondent was entitled to costs because the applicants, despite having a prima facie caveatable interest, failed to make reasonable inquiries before pursuing and then delaying withdrawal of the application, and therefore the general rule that costs follow the event under the High Court Rules applies.
18 Mar 2009

AV SHELLEY V A STEPHENS HC WN CIV 2008-485-2604

Citation

openlaw-ed7136c3_424e_42da_8fa3_f5015291e515.pdf
Court

High Court

The court found the relationship property agreement and the Loan Agreement (both signed after legal advice) sufficiently prima facie establish an arguable claim that $45,519.58 is owing and that the $17,432.55 for post‑separation credit account contributions was taken into account; without prejudice correspondence was admissible to avoid misleading the court; on that basis the applicant established a caveatable interest and the court declined in its discretion to remove the caveat.
24 Jan 2008

DOMINION FINANCE GROUP LIMITED V CHUNG-KUANG HO AND ORS HC AK CIV 2007-404-007834

Citation

openlaw-fc875762_c468_4fd2_ab0a_633c9bbdb573.pdf
Court

High Court

Where a registered mortgagee has exercised a power of sale and the registered mortgages are prior, the court will order lapsing of caveats under s 143 as appropriate or consented; where a caveat secures a subsequent unregistered mortgage that may lapse automatically on registration of the transfer, the court may adjourn the application to the Caveat List to allow registration and automatic lapse under s 141(1) and (3).
7 Sept 2005

BASELINE HOMES LTD (IN LIQN) V LONELY TRACK LAND CO LTD & ANOR HC AK CIV 2005-404-1713

Citation

openlaw-b25d7117_670e_4de5_a6d1_3255a97f1a97.pdf
Court

High Court

The court allowed the allowances for commencement of defence and affidavit preparation (Items 2 and 7.3) because the work involved approximately 30 professional hours equating to about four days and was reasonable under r48B Band B, but disallowed the allowance for trial preparation (Item 7.4) because settlement/discontinuance occurred before the hearing and written submissions had not been prepared; resulting in an award of costs of $6,380 on a Category 2 Band B basis plus disbursements fixed by the Registrar.