Mawhinney v Registrar-General of Land [2014] NZHC 933 (7 May 2014)

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UNDER THE	Judicature Amendment Act 1872
IN THE MATTER OF	The Land Transfer Act 1 952
IN THE MATTER OF	an application for Judicial Review
BETWEEN	PETER WILLIAM MAWHINNEY Applicant
AND	THE REGISTRAR-GENERAL OF LAND First Respondent THE ATTORNEY-GENERAL Second Respondent

Hearing:	13 November 2013
Appearances:	Applicant on own behalf S McKechnie for the Respondents
_Judgment:	_{7 May 2014}

This judgment was delivered by me on 7 May 2014 at 4.30 pm, pursuant to r 11.5 of the High Court Rules

[1] On 6 December 2012 Associate Judge Christiansen delivered a judgment¹directing the defendants in that proceeding (Forest Trustee Ltd (“FTL”), Otium Trustee Ltd (“OTL”) and Zebra Crossings Trading Ltd (“Zebra Crossings”) and Peter William Mawhinney (“Mr Mawhinney”)) to sign and consent to the registration of a priority instrument under which the mortgage to the plaintiff (Nags Head Horse Hotel Ltd (“Nags Head”)) was granted priority over mortgage

[2] On 7 May 2013 Mr Mawhinney filed the statement of claim in the current proceeding. On 27 June 2013 the respondents filed an application to strike out the statement of claim and to dismiss the proceeding in reliance on rr 15.1(a) and (d) of

[4] On 2 September 2013 Mr Mawhinney filed an amended statement of claim. On 2 October 2013 the respondents filed an amended application for an order striking out the amended statement of claim and dismissing the proceeding for want of jurisdiction in reliance on not only rr 15.1(a) and (d) but also r 5.49. It is that application which was argued on 13 November 2013 and to which this judgment relates.

[5] The circumstances relating to the loan advance by Nags Head and the issue of the priority between the Nags Head mortgage and mortgage 7998827.2 are conveniently related in the judgment of Associate Judge Christiansen:

[35] Nags Head is the mortgagee under mortgage 8576760.1 registered against the property. Nags Head’s proceeding concerns the priority between its mortgage and another mortgage registered against the property (mortgage

[36] The first defendant (FTL) is the registered owner of the property (Anthony Mawhinney is and at all relevant times was the Director of FTL). OTL was the mortgagee under mortgage 7998827.2 when Nags Head’s proceeding was commenced in March 2012. The third defendants (Zebra and Peter Mawhinney) are the current registered mortgagees under mortgage

[37] Before the summary judgment hearing began the solicitors for FTL filed a notice with the Court seeking leave to withdraw on account they no longer had instructions to act. Leave was granted accordingly. This meant that none of the defendant companies was represented at the summary judgment hearing and that Mr Mawhinney was self represented in his capacity as a trustee of the third defendant whose interest in mortgage

[38] Mr Mawhinney has clearly been closely been involved, along with his brother Anthony, in a lot of the dealings concerning the property since well before those events surrounding Nags Head’s loan to the Doug Vesey Trust.

[39] Peter Mawhinney deposes that in April 2010 he became involved in a relationship with Ms Lowndes and that in the period May to August 2010 he negotiated with Ms Lowndes a loan from Nags Head to stop the property being sold at a mortgagee sale at the hands of the then first registered mortgagee. The Doug Vesey Trust, of which Mr R G Vesey was trustee, was the registered proprietor of the property from 17 November 2008 until 21

October 2011. OTL was a mortgagee at the time the Doug Vesey Trust acquired the property and upon the Trust’s acquisition of the property OTL

[41] Nags Head’s loan of $420,000 on 24 August 2010 was recorded by a term loan agreement.

[42] The loan agreement included the following terms, among others: (a) The principal sum was repayable within three years.

(b) The loan agreement was to be secured by an all obligations, registered first mortgage over the property.

(c) Nags Head acknowledged that the property was to be transferred by Mr Vesey to FTL and agreed that it consented to such a transfer on the condition that FTL undertook and covenanted to be bound by the same terms as those contained in the loan agreement and to accept an assignment of the mortgage to be registered over the property in accordance with the agreement provided that:

(ii) FTL must agree to be bound by the deed of priority in the form annexed to the loan agreement and to execute any further deed of priority that Nags Head deemed necessary in order to secure such obligations.

[43] Mr Vesey then granted Nags Head a mortgage over the property being mortgage 8576760.1 with a priority amount of $840,000 plus interest. The mortgage provided:

If the mortgagee requires, the party giving this mortgage must promptly execute and deliver to the mortgagee all assignments, transfers, security interests and any other agreements and documents, and do anything else which the mortgagee may deem necessary to perfect a security interest created under this mortgage or secure the full benefit of the mortgagee’s rights under this mortgage.

[44] On 24 August 2010 Nags Head, Mr Vesey and Sixty-Six entered into a deed of priority to arrange priorities in respect to Nags Head’s and Sixty- Six’s mortgages. The deed included the following terms and conditions (among others):

(a) The Nags Head Mortgage, and all moneys secured from time to time under it, will have first priority over Mortgage

6815429.4 and Mortgage 7998827.2 for an amount not exceeding the First Mortgagee Priority Amount (clause 1, Schedule).

(b) The First Mortgage Priority Amount is $840,000 plus (among other things) interest, fees and expenses incurred by Nags Head in (among other ways) protecting the security under the Nags Head Mortgage (clause 13, Schedule).

(c) If required by Nags Head, Sixty-Six will immediately sign, and will consent to the registration in the relevant land register of, a priority instrument under which the Nags Head Mortgage is granted priority over Mortgage 6815429.4 and Mortgage 7998827.2 (clause 5, Schedule).

(d) Neither Nags Head nor Sixty-Six will transfer or assign any interest or right in or to its Mortgage to any person unless that person has agreed to be bound by the Document (clause

(a) Mr Vesey, by his attorney Anthony Mawhinney. (b) Sixty-Six, by Anthony Mawhinney.

[47] On 16 February 2011 Sixty-Six’s mortgages were transferred back to OTL. Nags Head says it received no notice of Sixty Six’s intention to transfer those and did not consent to them.

[48] On 6 September 2011 in exercise of the power of sale in one of those mortgages OTL transferred the property from Mr Vesey (as trustee for the Doug Vesey Trust) to Mr Vesey in person. Nags Head says it received no notice of this intention to transfer the property in exercise of the power of sale, and did not consent to it.

2012 respectively, Nags Head requested them to immediately sign and consent to the registration of a priority instrument under which the Nags

[51] FTL and OTL refused to sign or consent to the registration of a priority instrument by which the Nags Head mortgage was to be granted priority over mortgage 7998827.2.

[6] On 24 February 2012 FTL lodged for registration a transfer of the land located at 131-149 Anzac Valley Road, Waitakere³(“the property”) to End of the Line Ltd (“EOTL”). The subsequent amendments to that document and the communications from Land Information New Zealand (LINZ) to FTL with reference to the implications of those various amendments are best understood when related in

_{a discrete sequence rather than being interspersed throughout the
general chronology.}

[7] That sequence of events is related in detail in the Amended Statement of Claim. Factual allegations (as Mr Mawhinney correctly submits) are assumed to be true in a strike out application. However to facilitate the argument at the hearing I received an affidavit from Mr Robert Andrell, a solicitor in the office of the first respondent, which helpfully annexed the various documents referred to in the amended statement of claim. Where there is a difference as to a date of an event, I refer to the date of the actual document but for completeness I note the point of

[8] On or about 24 February 2012 (that being the date recorded on the LINZ dealing number sticker applied to the document)⁴a transfer instrument bearing the date 7 February 2012, recording a transfer of the property from FTL to EOTL, was presented for registration. It was executed by Mr Anthony Milton Mawhinney and was supported by a statutory declaration by Mr P W Mawhinney attesting to the signature on the transfer instrument. The instrument was allocated a dealing

[9] On 12 March 2012 LINZ sent a letter to FTL advising that the dealing number 8993670.1 had been placed on requisition because evidence, such as a copy of an original rates demand or utility bill by the executing party FTL, was required to ascertain the validity of the transfer. All the documents lodged by FTL were returned

_{lodging of the Nags Head caveat instrument number 9006452.1 on 29 March
2012.}

[11] On or about 2 April 2012 (that being the date recorded on the LINZ dealing number sticker applied to the transfer instrument)⁷the transfer previously submitted on or about 24 February was lodged for registration in an amended form. There was

_{one change to the document: the description of the transferor was
amended to read:}

Otium Trustee Limited as mortgagee under Mortgage 799827.2 (sic) of which Forest Trustee Limited is the mortgagor. See annexure schedule.

However no changes were made so far as the signing and witnessing of the document was concerned.

[12] The annexure schedule stated that between 1 April 2011 and 31 October 2011 the mortgagor had made default by failing to pay interest to the mortgagee, that on

_{1 December 2011 the transferor gave the notice prescribed by s 119 of
the Property}

⁴_{The date alleged in [9] of the amended statement of claim
is 17 February 2012.}

⁷The date alleged in [15] of the amended statement of claim is 25 February 2012.

Law Act 2007 and that in pursuance of the power of sale the transferor had agreed to sell the property to the transferee.

[13] A LINZ letter to FTL dated 12 April 2012⁸noted that the transfer was now a transfer in exercise of a power of sale whereas the first transfer lodged was by FTL. LINZ advised that it was not permissible to substitute a new instrument in lieu of the original instrument lodged, and enquired whether FTL was lodging a transfer by FTL or a transfer in exercise of a power of sale. If the latter, then the instrument was required to be re-executed and signed correct. All the documents lodged on 2 April

[14] On or about 4 May 2012 (again that being the date recorded on the LINZ dealing number sticker) the document was re-submitted with still further amendments. The date had been changed from 7 to 25 February 2012 and the document had been re-executed by Mr A M Mawhinney (in his capacity as a director of OTL) in the presence of a new witness, Mr N Mawhinney. The document was accompanied by a statutory declaration of the person executing (Mr A M Mawhinney) dated 26 April 2012 and a statutory declaration of the witness (Mr N Mawhinney) dated 26 April 2012.

[15] A LINZ letter to FTL dated 4 May 2012 noted that in response to the requisition letter of 12 April 2012 FTL had returned a new instrument being a transfer in exercise of power of sale by OTL and that FTL had not returned for registration the transfer by FTL. LINZ advised that it had treated transfer 8993670.1 as withdrawn from registration and that it had accepted the transfer in the exercise of the power of sale by OTL as a new dealing.

[16] The consequence of that stance taken by LINZ was that the date of registration of the Nags Head caveat pre-dated the lodgement of the instrument being

_{the transfer in exercise of a power of sale which had been accepted as a
new dealing.}

⁸Paragraph 20 of the amended statement of claim states that an email of the first respondent dated

[17] On 29 March 2012 Nags Head registered a caveat against the title 80938. The caveat identifier was 9006452.1. Nags Head sought summary judgment in respect of its application for an order for specific performance of the loan agreement dated 24 August 2010.¹⁰Associate Judge Christiansen granted summary judgment on 6 December 2012.¹¹

7998827.2 from OTL to Zebra Crossings Trading Ltd and P W Mawhinney. That transfer was registered on 30 August 2012. On 3 October 2012 the first respondent registered a caveat 9200240.1.

[19] The statement of claim in this proceeding was filed on 7 May 2013. The relief sought included an order quashing the decision to treat the dealing and transfer in 8993670 as withdrawn.

[20] On 28 May 2013 a mortgage priority instrument making mortgage 8576760.1 first priority and mortgage 7998827.2 second priority was registered.

[21] There followed the initial strike out application, the Court of Appeal’s judgment, the amended statement of claim and the amended strike out application.¹²

[22] The form of both the original and the amended statement of claim is somewhat unusual. In each case the heading to the document states that the claim is brought under the Judicature Amendment Act 1972 and the second page of each document commences with a description including “Application for review and

¹⁰The terms of the loan agreement are recited at [42] of the judgment of Associate Judge

[23] Prior to the outline of the facts, the original statement of claim contained a five paragraph “Summary of Claim” which included:

(a) omitted to discharge subsequent Mortgage 799 and the subsequent Nags Mortgage when the Land was transferred in exercise of power of sale under prior Mortgage 681 on 6 September 2011.

8993670.1 lodged 27 February 2012, the sale of which had been adopted under s 179 Property Law Act 2007 by the mortgagee in

(c) omitted to register the transfer in 8993670.1 in the order of priority prescribed in s 37 Land Transfer Act 1952, being in the order of time in which instruments are presented for registration, but registered caveat against dealings 9006452.1 which had been lodged (sic) Nags subsequent to the lodging of transfer 8993670.1, and then refused to register that transfer on the ground that such registration was prevented by Nags caveat 9006452.1.

[24] Following a detailed recitation of the alleged facts, under a heading “Cause of Action – Breach of Statutory Duty” there were alleged five breaches of statutory duties by the first defendant under the Property Law Act 2007, the Land Transfer Act

	(b)	An order of certiorari quashing the decision of the first respondent to treat the dealing and transfer in 8993670 as withdrawn.
	(c)	An order of mandamus that mortgage 799 (mortgage 7998827.2) and the Nags Mortgage (mortgage 8576760.1) are discharged and cut out from computer freehold register 80938.
[26]	The	amended statement of claim is somewhat more brief.	The

“Summary of Claim” comprises a single paragraph which is identical in content to paragraph 8(c) of the original statement of claim. Under the heading “Cause of

_{Action – Breach of Statutory Duty” three breaches of
statutory duty are pleaded.}¹³

[27] However the prayer for relief is in a different form from the original statement of claim. It reads:

(a) An order of certiorari quashing the decision of the first respondent to treat the dealing and transfer in 8993670 as withdrawn;

(b) An order of mandamus requiring the first respondent to register the transfer instrument in dealing 8993670 lodged on or about

[28] During the course of my consideration of the arguments presented at the hearing on 13 November 2013 an issue emerged in respect of which neither party had made submissions. Consequently in my minute of 16 December 2013 I invited the parties to provide memoranda stating their positions on the power of the first respondent to retrospectively register a transfer so as to predate an extant caveat and consequentially on the power of the Court to make an order in the particular form of the second order sought. I received written submissions from Mr Mawhinney and from the respondents.

[29] On 14 February 2014 I received a further memorandum from Mr Mawhinney which advised that two new circumstances had arisen that impacted on the proceeding. The first development was that caveat 9006452.1 (referred to in order (b))¹⁴had lapsed. Secondly, Mr Mawhinney advised that the first respondent had refused to withdraw the first respondent’s caveat against dealings in memorial

(b) Including a new cause of action seeking an order that the first respondent’s caveat was lapsed or withdrawn. He proposed that the strike out application should be put temporarily into abeyance and that

[30] Counsel for the respondents confirmed that the Nag’s Head caveat had indeed lapsed on 24 January 2014. This was as a result of an application by Mr Mawhinney pursuant to s 145A of the Land Transfer Act (the LTA) which application was not opposed by Nag’s Head. The respondents opposed the new course proposed by Mr Mawhinney. They submitted that a claim directed to the Registrar-General’s caveat would be a new cause of action unrelated in substance to the current claims and noted that Mr Mawhinney had a statutory remedy under s 216 of the LTA.

[31] In anticipation of convening a telephone conference with the parties I issued a further Minute (No 3) on 19 March 2014 seeking clarification of the parties’ positions in light of the lapse of caveat 9006452.1. I made directions that:

(a) Mr Mawhinney was to advise what relief was sought in respect of caveat 9006452.1; and

(b) The respondents were to advise, in the light of Mr Mawhinney’s response, whether they continued to seek a judgment on their application to strike out the amended statement of claim.

[32] In his memorandum of 2 April 2014 in response Mr Mawhinney proposed what was described as a pragmatic approach, failing which he indicated that the relief to be sought would be:

(a) An order of certiorari quashing the decision of the first respondent to treat the dealing and transfer in 8993670 as withdrawn.

27 February 2012 is to be registered in the order of time in which the same was presented for that purpose.

(c) An order of mandamus requiring the first respondent to register the transfer instrument in dealing 8993670 lodged on or about

27 February 2012 in priority ahead of dealings that were presented for registration subsequently.

(d) An order that the first respondent’s decision to lodge and maintain caveat 9200240.1 in reliance on s 211(d) of the Land Transfer Act

[33] The respondents submitted that there was no application before me concerning the proposed order (d). In respect of the remainder of the relief sought they maintained their position that the claim should be struck out.

[34] The respondents drew to my attention still further developments that had occurred since the 30 November 2013 hearing. They filed an affidavit from Mr M J Veneer which disclosed that:

(a) The mortgagee (OTL) which had purported to effect the transfer in the power of sale no longer holds the mortgage;

(b) The mortgage has been transferred to Zebra Crossings which is in the process of being removed from the Register of Companies. The directors of Zebra Crossings are Mr A M Mawhinney and the applicant Mr P W Mawhinney.

(c) The transferee is End of the Line Ltd which no longer exists as a legal entity, it having been struck off the Register of Companies.

[35] The respondents made the point that Mr Mawhinney was requesting the Court to make orders to require the Registrar-General to register a transfer from a company that no longer holds the mortgage to a company that no longer exists as a legal entity.

[36] The three distinct grounds advanced in the respondents’ amended application for strike out and in opposition to jurisdiction can be summarised as follows:

(b) The pleadings constitute an abuse of process in that they are an attempt to relitigate matters already determined by the High Court and Court of Appeal and they seek remedies not validly available in judicial review (as the claim is titled) or in a tortuous (sic) claim for breach of statutory duty (as the cause of action is framed); and

(c) The High Court lacks jurisdiction to entertain the proceeding because the proceeding seeks to impeach the conclusions of the Court of Appeal and the matter is now res judicata.

[37] The respondents contended that the issues raised in this claim have been expressly considered by the Court of Appeal in its August 2013 judgment. The Court of Appeal referred to the 2012 transactions in the following paragraphs:¹⁵

[10] Various transactions followed in 2012. On 20 January FTL purported to sell the property to End Of The Line Ltd (EOTL) for $4.51 million. The purchase price was to be funded by a term loan back by Sixty- Six for all except $10 of the price. However, the Registrar declined to accept the memorandum of transfer because it was apparently invalid.

(a) Anthony Mawhinney in exercising EOTL’s power of attorney executed the documents for it on the purported sale by FTL on 20 January 2012.

(b) Anthony Mawhinney acting as EOTL’s attorney amended the transfer instrument sometime prior to 4 May 2012 to record that the transfer was an exercise of OTL’s power of sale. But EOTL through Mr Mawhinney had knowledge of the deed or priority. Again, like Mr Vesey, by virtue of s 183 of the PLA, EOTL took title subject to Nags Head’s mortgage.

(c) OTL’s transfer of the mortgage to Zebra and Mr Mawhinney on 31 May 2012 was subject to Mr Mawhinney’s express knowledge of the deed of priority. He admitted that he was

¹⁵Mawhinney v Nags Horse Head Hotel, above n 2, at [10], [28]-[29] and [35].

[29] As the Associate Judge found, the unsuccessful purpose of each transaction entered into after 24 August 2010 was to defeat Nags Head’s interest. Separately and together, they did no more than transfer ownership interests within related entities which were all bound by their knowledge of Nags Head’s first ranking security. All transfers foundered on that rock, despite Mr Mawhinney’s misplaced confidence that OTL’s sale to Mr Vesey extinguished Nags Head’s mortgage. Thus Mr Mawhinney’s appeal cannot possibly succeed unless he is able to impugn the validity of Nags Head’s mortgage and deed of priority.

[35] Third, Mr Mawhinney submits that the Associate Judge failed to take into account evidence that the transfer of the property to EOTL was lodged prior to registration of the caveat; the sale and purchase agreement to EOTL was adopted by OTL; and the Registrar General of Land contravened s 37 of the LTA by registering Nags Head’s caveat first. As a consequence, the Associate Judge erred by failing to take into account that, once the transfer that EOTL was registered, Nags Head’s mortgage would be discharged by the operation of s 105 of the LTA. Again this argument is misconceived given that all parties to the relevant transactions were on notice of Nags Head’s prior charge and EOTL’s interest as owner is accordingly subject to Nags Head’s mortgage.

[38] I have no doubt that the original statement of claim was a collateral attack on the decision of Associate Judge Christiansen. That is manifest from the summary of the claim at [23] above and from paragraph (c) of the prayer for relief. The apparent objective was to have the Nags Head mortgage (the subject of the order for priority) discharged.

[40] The respondents challenge that amended pleading on essentially the same basis as the original claim although, in the light of the developments since the hearing, the emphasis has shifted to the second ground and in particular the issue of jurisdiction to make the order sought.

[41] Mr Mawhinney denies that the recast claim seeks to impeach the conclusion of the Court of Appeal. The thrust of his contention is more particularly elaborated in that part of his submissions which engage with the respondents’ submission that the proceeding is an abuse of process in seeking to relitigate matters already determined. In that context his written submissions included the following contentions:

5.1 The primary ground for the application is that the application for judicial review seeks to re-litigate decisions which were as regards priority of the Nags Head mortgage, and to deprive Nags of its fruit of victory (e.g. at paragraph 40). The application for judicial review seeks no such thing, by its text. The application for review seeks a determination as to whether the transfer to EotL should be registered ahead of the Nags caveat. It has nothing to do with the priority of mortgages, including the Nags mortgage. Therefore, the application for review cannot be considered an abuse of process of the Court, contrary to the applicants’ contentions.

5.2 The applicant contends at paragraphs 41 and 42 that the primary purpose of application for review is to defeat the remedies granted by the Court of Appeal to Nags. Those remedies were that the Nags mortgage has priority. At paragraph 43, the applicants contend that should the relief sought (sic) the review application be granted, Nags would lose protection. There is nothing in the application for review that would result in such an outcome. Again, the Nags priority instrument is registered. The applicants have given no hint and certainly have not demonstrated how any determination as regards the review application could upset that outcome. That is because it would not.

5.3 That submission is confirmed at paragraph 44 of the respondents’ submissions, where it is recorded that the Courts have determined that the transfer to EotL would not defeat the Nags mortgage priority. This is repeated at paragraph 49 of the applicants’ submissions, where it is recorded that the Court of Appeal concluded the argument regarding the effects of the EotL transfer and the omission by the RGL to register it would not affect the priority of the Nags mortgage because all relevant parties were on notice of that priority. Thus by extrapolation (in the mathematical sense) from that determination, if the RGL was to register the transfer to EotL ahead

[42] In oral submissions he explained that the reason for seeking the priority of registration specified in the second order sought was merely to enable the registration of the transfer to EOTL to take place notwithstanding the presence of the Nags Head caveat. The caveat would not be operative to preclude the registration of the transfer to EOTL if the registration of the transfer could somehow antedate the registration of the caveat.

[43] Such an outcome is sought to be achieved by a combination of the first order, namely quashing the first respondent’s action in treating the transfer by FTL as withdrawn (and accepting as a new dealing the transfer in exercise of a power of sale by OTL) and the second order, namely directing registration of the thus revived transfer by FTL.

[44] By this route, it was contended, the prohibition on the entry on the register in s 141(1) would not prevent the registration of the revived transfer because the saving provision in s 141(2) of the LTA would apply:

(2) Subsection (1) shall not prevent the Registrar from making any entry necessary to complete the registration of an instrument that has been accepted for registration before the receipt of the caveat.

[45] I asked Mr Mawhinney why, if the objective was simply to transfer the land into EOTL’s name without affecting other interests, FTL did not simply invoke the statutory procedure for the removal of a caveat in s 143. In response he referred to a number of factors including security for costs and the issue of funding given the representation requirements reflected in Re GJ Mannix Ltd.¹⁷I understood him to say that he had come to the conclusion that, rather than pursue that available procedure under the Land Transfer Act, the objective could be achieved by amending the pleading in the current proceeding.

[46] Even taking at face value the explanations about security for costs and the need for legal representation for FTL, I have difficulty understanding why anyone would seek to secure the objective of registering a transfer to EOTL by the elaborate procedure of a judicial review proceeding seeking orders in the nature of certiorari and mandamus. Those remedies are discretionary and, even if the causes of action were successful, there would be no certainty that they would be granted, particularly having regard to their ante-dating objective.

[47] However all of that proceeded on the footing that the Nags Head caveat remained on the title. Now, as noted above, the circumstances have changed again. The Nags Head caveat has lapsed as a consequence of FTL’s application under s 145A. The impediment to registration of the transfer to EOTL is no longer the Nags Head caveat but rather the caveat of the Registrar-General. As Mr Mawhinney recognised in his memorandum of 2 April 2014, as a consequence of the lapse of caveat 9006452.1 his application is rendered unnecessary in respect of that caveat.

[48] Nevertheless Mr Mawhinney seeks the relief in [32] above. Order (a) remains the same as in the amended statement of claim. Order (b) is new: it seeks a declaration in the nature of a preliminary step to order (c). Order (c) is essentially similar to order (b) in the amended statement of claim.

[49] Order (d) is new. I do not address it because it is not the subject of any pleading before me and I have not heard argument pertaining to the Registrar- General’s caveat.

[50] It appears that the objective underlying all of orders (a), (b) and (c) is to secure registration of “the transfer instrument in dealing 8993670” as at 27 February

Mr Mawhinney’s argument that there is only one “instrument” notwithstanding that the transfer document was amended, re-executed and witnessed in the manner

[51] As the matter has evolved in response to the changed circumstances, the focal issue has effectively refined to whether the first respondent has the power to register a transfer “retrospectively” and hence whether the Court has the jurisdiction to direct the first respondent to do so. The issue whether the course advocated by Mr Mawhinney is retrospective or not lies at the heart of that question.

[52] Mr Mawhinney explains that he simply seeks an order to the effect that the first respondent complies with s 37(1) of the LTA which states:

37(1) Every instrument shall be registered in the order of time in which the same is presented for that purpose.

His position is that FTL’s transfer was presented on 27 February 2012¹⁹and it should be registered at that date notwithstanding the subsequent steps involving OTL as

The instrument was returned (improperly) by the first respondent to the person who lodged it (Forest Trustee Limited) and was subsequently amended and re-presented to LINZ on or about 25 February 2014 (sic).

[54] As noted above²⁰the documents amended to show OTL as the transferor were then rejected again by LINZ on the basis that the transfer by OTL as mortgagee needed to be re-executed and signed correct. Once that had been attended to, the documents were submitted yet again on or about 4 May 2012.²¹

[55] Mr Mawhinney’s contention is that the documents in the form as finally submitted on 4 May 2012 (subsequent to the registration of the Nag’s Head caveat on 29 March 2012) were entitled to a date of registration of 24 (or 27) February

¹⁹_{The documents themselves indicated that it was 24 February
2012: see [8] above.}

[56] His contention is that, although the documents were amended, re-executed and rewitnessed, they remained throughout the same instrument which was entitled to registration on an earlier date, namely the date on which a version of the document was first submitted. His contention is captured at [23] of the amended statement of claim:

The first respondent advised that it is (sic) was not permissible to substitute a new instrument lodged in a dealing in lieu of the original instrument lodged, the inference being that the transfer instrument in exercise of power of sale was a different instrument to the original transfer instrument. However, the subject transfer document was exactly the same instrument (“instrument” as defined in s2 Land Transfer 1952) as originally lodged; that is, the same paper. The only difference was that the text on it had been amended in a manner in full accordance with regulation 22 Land Transfer Regulations

(b) the exercise of the rights and powers under s179(2)(b) to OTL to execute all assurances, including the legal evidence of the transfer of the land, and to do all other things necessary to transfer the land to EOTL.

[57] As he said in his memorandum of 24 April 2014: a transfer instrument is a transfer instrument notwithstanding how the transfer comes about.

[58] To the extent that his proposed outcome may appear to be retrospective, Mr Mawhinney says that that is no more than is contemplated by and provided for in the LTA.

[59] I apprehend that Mr Mawhinney considers that, because the assertion (that the OTL transfer is exactly the same instrument as the FTL transfer) is contained in a pleading, then the Court is bound to accept it on a strike out application. However, unlike the factual allegations, that particular contention is a legal proposition and, unlike alleged facts, it is not something which is simply to be assumed to be true.

[60] The respondents’ starting point is that the LTA is highly prescriptive. The Registrar-General is a creature of the LTA and as such he is only able to undertake functions which the LTA prescribes. The LTA does not have any mechanism by which the Registrar-General can register transfer instruments retrospectively.

[61] The respondents acknowledge that s 37 imposes a mandatory requirement which allows no discretion to the Registrar-General. Instruments “shall” be registered in the order of time in which they are presented. However the requirement is limited in a significant respect, namely the requirement that instruments be in order for registration in terms of s 43. The Registrar-General will not authorise the registration or deposit of any instrument which fails to satisfy s 43(1).

Where any instrument is returned pursuant to this section, it shall be deemed not to have been presented for registration.

[63] As the chronology recites at [11]-[16] above, the FTL transfer was considered to be incomplete and the documents were returned. What was subsequently presented for registration was a transfer executed by OTL (albeit by amending the document previously submitted by FTL) in the exercise of a power of sale under a mortgage. It was no longer a transfer by the registered proprietor, FTL. The consequence of this (namely, the return of the original documents to FTL and the presentation of different documents by OTL) was that the transfer first presented on

[64] I interpolate that Mr Mawhinney’s response to the s 43(6) point is that that provision could only apply if “the transfer instrument” was not in order for registration. In his submission that was not the case.

[65] The respondents recognise that an order for mandamus is available to compel or direct a person under review to exercise a public duty in circumstances where that person has failed or refused to exercise it or is exercising it in a manner which frustrates the objects of the statute conferring the duty. They say however that for an

order of mandamus to lie, the duty must be capable of being performed. In the present case they say there is no duty to register documents retrospectively.

[66] Save for minor differences as to dates which are not material to the decision, there is no dispute on the facts. The issue whether there was a failure to observe the duty to register in s 37 (Mr Mawhinney’s contention) on the one hand or an alleged attempt to register a transaction retrospectively (the respondents’ contention) on the other, involves a question of law. It is necessary for me to resolve that question of law in order to determine whether or not the Court has jurisdiction to grant the relief sought.

[67] For, as explained in the judgment of Diplock LJ in Garthwaite v Garthwaite, jurisdiction is concerned with not only the subject matter of litigation and the identity of litigants but also the relief sought in the proceeding:²²

In its narrow and strict sense, the “jurisdiction” of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process by reference (1) to the subject-matter of the issue or (2) to the persons between whom the issue is joined or (3) to the kind of relief sought, or to any combination of these factors.

(a) means any printed or written document, map, or plan relating to the transfer of or other dealing with land, or evidencing title to land

[69] In my view the defining nature of an instrument is the particular incidence of transfer or dealing with the land which it purports to give effect to. Whether two incidences of transfer or dealing with land could be viewed as one and the same instrument would turn on the degree of identity of the transaction, not on whether the same piece of paper was used (albeit amended).

[70] I consider that a transfer by a mortgagee, upon adopting an agreement for sale and purchase, would be a different instrument from a transfer submitted by the mortgagor. In that regard I note that s 179(3) of the Property Law Act provides:

The mortgagee's powers under subsection (2)(b) include, in the case of a mortgage over land under the Land Transfer Act 1952, the power to do either or both of the following as if the land had been sold by the mortgagee:

OTL then exercised it (sic) powers under s179(2)(b) Property Law Act 2007 to do all things necessary to effect the transfer of the Land, and amended the original transfer instrument was follows:

(b) the transfer was executed for a second time by Mr AM Mawhinney, but the second occasion was in his capacity as director of OTL

[72] In my view those steps constituted the preparation of a new instrument, albeit one prepared by the route of amending and executing a document which was already in existence. However the fact of its prior existence as a transfer instrument by FTL did not mean that, upon its adaptation by OTL, the OTL transfer was one and the same instrument as the FTL transfer instrument.

[73] In my view, what the first respondent received back on 2 April and then, later again, on 4 May 2012 was a different instrument from that which had been submitted by FTL on 24 February 2012. Consequently the effect of s 43(6) was that that first instrument was deemed not to have been presented. The instrument subsequently submitted by OTL was not entitled in effect to claim as a priority date for

registration the date of 24 February 2012, when the first instrument had been submitted.

[74] In those circumstances the first respondent was not under an obligation pursuant to s 37 to accept the OTL instrument for registration with an effective date of 24 February 2012. Indeed he had no power to do so. The Registrar-General having no power to do so, this Court has no jurisdiction to issue an order for mandamus requiring him to do so.

[75] As noted above, both variants of relief are framed on the basis of the “one instrument” hypothesis. Order (b) in the amended statement of claim²⁴refers to “the transfer instrument in dealing 8993670 lodged on or about 17 February 2012”. Orders (b) and (c) in the memorandum²⁵are essentially the same although the date

[76] However it is plain that the objective of all the variants of orders sought is to have the OTL transfer (initially submitted on 2 April 2012 and re-submitted on

4 May 2012) accepted for registration as at the date on which the FTL transfer was submitted. That objective tends to be obscured by the reference in the various forms

[77] For the reasons explained above I do not consider that the High Court has jurisdiction to grant the relief sought in either the amended statement of claim or Mr Mawhinney’s memorandum of 2 April 2014. Consequently it is appropriate to make an order striking out the proceeding.

[78] Since I have come to the conclusion that the Court does not have jurisdiction to grant the relief sought in this proceeding I do not consider it necessary or appropriate to proceed further to also consider the other grounds relied upon.

[80] The respondents are entitled to seek costs. I direct that the respondents are to file a memorandum as to costs by 23 May 2014 and Mr Mawhinney is to file a

High Court of New Zealand Decisions

Mawhinney v Registrar-General of Land [2014] NZHC 933 (7 May 2014)