Cheung & Anor v Mackenzie (Rev1) [2023] EWHC 220 (Ch) (08 February 2023)

Cheung & Anor v Mackenzie (Rev1) [2023] EWHC 220 (Ch) (08 February 2023)

Paragraph 11 of the October 1947 conveyance reserves to the Governors (now the Whitgift Foundation) a right, separate from their right to deal with retained land, to allow departures from the restrictive covenants in the Third Schedule, including the power to release or waive those covenants as they affect No. 444. This interpretation is supported by the language, structure, and commercial context of the clause.

Citation
[2023] EWHC 220 (Ch)
Parties
Defendant/appellant: Sharon Shac-Yin Cheung; Defendant/appellant: Infinity Homes & Developments Limited; Claimant/respondent: Neil John Mackenzie
Jurisdiction
England and Wales
Judgment Date
08 February 2023
Procedural Posture
Chancery Appeal / Appeal From Order of Deputy Master
Outcome
Appeal allowed
Legal Topics
Restrictive Covenants, Interpretation of Deeds, Enforceability of Covenants, Modification of Covenants
Property Law Land Law Restrictive Covenants Interpretation of Deeds Enforceability of Covenants Modification of Covenants

Case Brief

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Parties

Sharon Shac-Yin Cheung

Defendant/appellant

Infinity Homes & Developments Limited

Defendant/appellant

Neil John Mackenzie

Claimant/respondent

Procedural Posture

Chancery Appeal / Appeal From Order of Deputy Master

Legal Issues

  1. 1 Whether paragraph 11 of the October 1947 conveyance allows the Whitgift Foundation to release or modify restrictive covenants affecting No. 444 Selsdon Road
  2. 2 Proper interpretation of the reservation of rights in paragraph 11

Ratio Decidendi

Paragraph 11 of the October 1947 conveyance reserves to the Governors (now the Whitgift Foundation) a right, separate from their right to deal with retained land, to allow departures from the restrictive covenants in the Third Schedule, including the power to release or waive those covenants as they affect No. 444. This interpretation is supported by the language, structure, and commercial context of the clause.

Court Disposition

Appeal allowed

Orders

  • Declaration that the Whitgift Foundation has the right to release or modify the restrictive covenants affecting No. 444 Selsdon Road under paragraph 11 of the October 1947 conveyance.