HND Holding Limited v Lau [2023] NZHC 3663 (14 December 2023)

Last Updated: 19 December 2023

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2953 [2023] NZHC 3663

UNDER	Section 142 of the Land Transfer Act 2017
IN THE MATTER OF	an application for an order removing caveat no. 12780903.1 (North Auckland Registry)
BETWEEN	HND HOLDING LIMITED Applicant
AND	EE KUOH LAU Respondent

Hearing:	12 December 2023
Counsel:	R O Parmenter for the Applicant Respondent in person
Judgment:	14 December 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 14 December 2023 at 4 pm.

Pursuant to Rule 11.5 of the High Court Rules.

.......................

Registrar/Deputy Registrar

Solicitors/Counsel:

R Parmenter, Auckland

Ganda & Associates, Auckland

HND HOLDING LTD v LAU [2023] NZHC 3663 [14 December 2023]

Introduction

• [1] This is an application by HND Holding Limited, as mortgagee, for an order removing a caveat from a title to a property at 111 Waitakere Road, Waitakere. HND has sold the property exercising its power of sale. HND is prevented from completing settlement of the sale by a caveat lodged against the title by Mr Lau.

• [2] HND applied without notice for an order removing the caveat. I directed HND to proceed on a Pickwick basis. Mr Lau was served, and he appeared by VMR when this proceeding was called in the Caveats List on 12 December 2023. Mr Lau has since filed a notice of opposition, supporting affidavit from Daniel Kwok, and written submissions.

• [3] When the matter was called on 12 December 2023, the parties agreed that I should determine the matter on the papers, which I now do.

Discussion

• [4] The caveat in question, 12780903.1, was lodged by Mr Lau against two Records of Title:

(a) Record of Title Identifier NA 87D/983, which is the subject of this proceeding;

(b) Record of Title Identifier NA 82B/163. I gave judgment in CIV-2023- 404-2783 on 1 December 2023, ordering that the caveat be removed from that Record of Title.

• [5] The background to this application is largely identical to the background set out in paras [3] to [13] of my judgment dated 1 December 2023 in CIV-2023-404- 2783. The registered proprietor of the property in question in this proceeding is DASP Properties Limited, a company controlled by Daniel Kwok. The property has also been sold by HND to Joe Holdings Ltd.
• [6] The interests claimed by Mr Lau in this case are identical to those claimed in CIV-2023-404-2783. As in that case, Mr Lau’s caveat was registered after HND’s mortgage, and is subordinate to it.

• [7] For the same reasons that prevailed in CIV-2023-404-2783, Mr Lau’s caveat must be removed from the title to 111 Waitakere Road, Waitakere. In short, HND has an indefeasible title as registered mortgagee.

Orders

• [8] I order that the caveat number 12780903.1 be removed from Record of Title Identifier NA 87D/983.

• [9] Mr Lau shall pay costs to HND on a 2B basis, limited to the filing of the originating application and affidavit in support and .5 of a list appearance on 12 December 2023, plus disbursements as fixed by the registrar.

Associate Judge Brittain