In Ismail v Saheb [2018] NZHC 6 the High Court held a caveat had lapsed where the application that it not lapse was filed one day late due to the Court being closed on the last day for filing—3 January 2018. The calculation consistent with s. 29 of the Interpretation Act 1999 of a “working day” for filing the application excluded the period 25 December to 2 January, making the last day for filing 3 January. The HC was closed that day in accordance with HCR 3.2 that listed the Court’s holidays as ending on the close of 3 January. Rule 1.18 specified if the time for doing any act at a registry expires on a day on which the registry is closed, the act is in time if its done on the next day on which the registry is open—bur HCR 1.17(3) specifies it does not affect the application of the Interpretation Act 1999 (or other legislation). The HC granted leave to the applicant to lodge a second caveat based on the evidence before it, and restrained the owner from dealing with the property until that time.

The case is a salutary reminder about the absolute time limits to file an application to sustain a caveat within 14 days of notice of an application to the Registrar of Land that the caveat lapse (ss 145, 145A of the Land Transfer Act 1952; Part 6 Land Transfer Regulations 2002). There is no discretion on the part of the Court to extend the time limit.

This situation appears to have arisen due to a differences between the Interpretation Act 1999 and the definition of court holidays under the High Court Rules. It was appropriate for the Court to give the applicant leave to lodge a second caveat in these circumstances. The application to sustain that (second, but presumably identical to the first) caveat was then dealt with later on its merit.

The practical point that arises is that if the 14 day time period for lodge an application with the Court expires during the Court Christmas vacation on a day which is otherwise a working day then any application to sustain a caveat must be lodged with the Court before that vacation begins.