Neil John Mackenzie v Sharon Shac-Yin Cheung & Anor

Neil John Mackenzie v Sharon Shac-Yin Cheung & Anor

Paragraph 11 of the Third Schedule does not entitle the Whitgift Foundation to release 444 Selsdon Road from the restrictive covenant already imposed and enforceable by the owner of 432 Selsdon Road. The paragraph only allows the Foundation to depart from the stipulations in future dealings with unsold land, not to unilaterally release restrictions on land already sold. The Defendants' application for summary judgment and declaratory relief is dismissed.

Parties
Claimant: Neil John Mackenzie; First Defendant: Sharon Shac-Yin Cheung; Second Defendant: Infinity Homes & Developments Limited
Jurisdiction
England and Wales
Judgment Date
06 July 2022
Procedural Posture
Civil Property/trusts / Summary Judgment Application
Outcome
Defendants' application for summary judgment dismissed; no declaration granted in their favour.
Legal Topics
Restrictive Covenants, Construction of Deeds, Declaratory Relief, Building Schemes
Property Law Equity and Trusts Restrictive Covenants Construction of Deeds Declaratory Relief Building Schemes

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Parties

Neil John Mackenzie

Claimant

Sharon Shac-Yin Cheung

First Defendant

Infinity Homes & Developments Limited

Second Defendant

Procedural Posture

Civil Property/trusts / Summary Judgment Application

Legal Issues

  1. 1 Whether paragraph 11 of the Third Schedule to the 1947 conveyance entitles the Whitgift Foundation to release 444 Selsdon Road from a restrictive covenant enforceable by the owner of 432 Selsdon Road.
  2. 2 Whether the court should grant declaratory relief in respect of a deed of modification not yet executed.

Ratio Decidendi

Paragraph 11 of the Third Schedule does not entitle the Whitgift Foundation to release 444 Selsdon Road from the restrictive covenant already imposed and enforceable by the owner of 432 Selsdon Road. The paragraph only allows the Foundation to depart from the stipulations in future dealings with unsold land, not to unilaterally release restrictions on land already sold. The Defendants' application for summary judgment and declaratory relief is dismissed.

Court Disposition

Defendants' application for summary judgment dismissed; no declaration granted in their favour.