Neil John Mackenzie v Sharon Shac-Yin Cheung & Anor

Neil John Mackenzie v Sharon Shac-Yin Cheung & Anor

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; thus, if the Deed of Modification is executed, development of Number 444 in accordance with it will not breach the covenant nor constitute a derogation from grant.

Parties
Claimant/appellant: Neil John Mackenzie; Defendant/respondent: Sharon Shac-Yin Cheung; Defendant/respondent: Infinity Homes & Development Limited
Jurisdiction
England and Wales
Judgment Date
11 October 2024
Procedural Posture
Civil Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Restrictive Covenants, Interpretation of Conveyance, Building Schemes, Derogation From Grant
Property Law Contract Law Restrictive Covenants Interpretation of Conveyance 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

Civil Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the Whitgift Foundation can authorise the owner of land to develop it in breach of a restrictive covenant given to the Foundation when it sold the land
  2. 2 Interpretation of paragraph 11 of the Third Schedule to the 1947 Conveyance
  3. 3 Whether the Foundation's power to allow departures from covenants includes waiving or releasing covenants given by earlier purchasers

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; thus, if the Deed of Modification is executed, development of Number 444 in accordance with it will not breach the covenant nor constitute a derogation from grant.

Court Disposition

Appeal dismissed

Orders

  • If the Deed of Modification is executed, development of Number 444 in accordance with it will not be a breach of covenant nor a derogation from grant.