Mackenzie v Cheung & Anor [2022] EWHC 1694 (Ch) (06 July 2022)

Mackenzie v Cheung & Anor [2022] EWHC 1694 (Ch) (06 July 2022)

Paragraph 11 of the Third Schedule does not entitle the Whitgift Foundation to unilaterally release or modify restrictive covenants already imposed on land sold out of the estate; its effect is limited to future dealings with unsold land. The Defendants' construction is rejected, and the restrictive covenant remains enforceable by the Claimant.

Citation
[2022] EWHC 1694 (Ch)
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
Property Dispute (restrictive Covenant) / Summary Judgment Application
Outcome
Defendants' application for summary judgment dismissed; Claimant entitled to declaratory relief.
Legal Topics
Restrictive Covenants, Construction of Conveyance, Declaratory Relief, Building Schemes, Annexation of Covenants
Property Law Equity Restrictive Covenants Construction of Conveyance Declaratory Relief Building Schemes Annexation of Covenants

Case Brief

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Parties

Neil John Mackenzie

Claimant

Sharon Shac-Yin Cheung

First Defendant

Infinity Homes & Developments Limited

Second Defendant

Procedural Posture

Property Dispute (restrictive Covenant) / Summary Judgment Application

Legal Issues

  1. 1 Whether the Whitgift Foundation has the power under paragraph 11 of the Third Schedule to release or modify restrictive covenants imposed on 444 Selsdon Road, enforceable by the owner of 432 Selsdon Road.
  2. 2 Proper construction of paragraph 11 of the Third Schedule to the October 1947 conveyance.

Ratio Decidendi

Paragraph 11 of the Third Schedule does not entitle the Whitgift Foundation to unilaterally release or modify restrictive covenants already imposed on land sold out of the estate; its effect is limited to future dealings with unsold land. The Defendants' construction is rejected, and the restrictive covenant remains enforceable by the Claimant.

Court Disposition

Defendants' application for summary judgment dismissed; Claimant entitled to declaratory relief.

Orders

  • Application for summary judgment by Defendants dismissed.
  • Claimant entitled to declaration that restrictive covenant is enforceable against 444 Selsdon Road.