Mackenzie v Cheung & Anor [2024] EWCA Civ 13 (17 January 2024)

Mackenzie v Cheung & Anor [2024] EWCA Civ 13 (17 January 2024)

The second part of paragraph 11 of the Third Schedule to the 1947 Conveyance empowers the Foundation to waive or release covenants given in that schedule; execution of the Deed of Modification would not constitute a breach of covenant or derogation from grant, as the covenants were always qualified by the Foundation's reserved power.

Citation
[2024] EWCA Civ 13
Parties
Claimant/appellant: Neil John Mackenzie; Defendant/respondent: Sharon Shac-Yin Cheung; Defendant/respondent: Infinity Homes & Development Limited
Jurisdiction
England and Wales
Judgment Date
17 January 2024
Procedural Posture
Appeal From High Court (business and Property Courts, Chancery Division) / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Restrictive Covenants, Interpretation of Conveyance, Modification of Covenants, Building Schemes, Derogation From Grant
Property Law Charity Law Contract Law Restrictive Covenants Interpretation of Conveyance Modification of Covenants Building Schemes Derogation From Grant

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Parties

Neil John Mackenzie

Claimant/appellant

Sharon Shac-Yin Cheung

Defendant/respondent

Infinity Homes & Development Limited

Defendant/respondent

Procedural Posture

Appeal From High Court (business and Property Courts, Chancery Division) / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the Whitgift Foundation can authorise a departure from restrictive covenants imposed in a 1947 conveyance
  2. 2 Interpretation of paragraph 11 of the Third Schedule to the 1947 Conveyance
  3. 3 Whether execution of a Deed of Modification would constitute a breach of covenant or derogation from grant

Ratio Decidendi

The second part of paragraph 11 of the Third Schedule to the 1947 Conveyance empowers the Foundation to waive or release covenants given in that schedule; execution of the Deed of Modification would not constitute a breach of covenant or derogation from grant, as the covenants were always qualified by the Foundation's reserved power.

Court Disposition

Appeal dismissed

Orders

  • Declaration that execution of the Deed of Modification will not constitute a breach of covenant or derogation from grant
  • Permission to amend grounds of appeal refused