LANDMARK PROPERTY HOLDINGS LIMITED v SGA INVESTMENTS HOLDING PTE LIMITED [2022] NZHC 60

LANDMARK PROPERTY HOLDINGS LIMITED v SGA INVESTMENTS HOLDING PTE LIMITED [2022] NZHC 60

The annexure and expressly incorporated substituted rules together constituted a written positive covenant registered against the unit titles in 2004; the levy (scales) covenants relate to proprietors' unit title interests and beneficially affect the value and enjoyment of covenanted units as required by s126 PLA 1952, therefore the covenants run with the land and are enforceable against the registered proprietors (first to ninth defendants).

Citation
[2022] NZHC 60
Parties
First Plaintiff/first Counterclaim Defendant: LANDMARK PROPERTY HOLDINGS LIMITED; Second Plaintiff/second Counterclaim Defendant: SGA INVESTMENTS HOLDING PTE LIMITED; Third Plaintiff/third Counterclaim Defendant: PURE CARE NEW ZEALAND LIMITED; First Defendant: SHEN EMPIRE LIMITED; Second Defendant: NUZCORP INDUSTRIES LIMITED; Third Defendant: ELLETT INVESTMENTS LIMITED; Fourth Defendant: KEGG 187 LIMITED; Fifth Defendant: BALMERE CAPITAL LIMITED; Sixth Defendant: ALLEY VIEW LIMITED; Seventh Defendant: QUINN COMMERCIAL HOLDINGS LIMITED; Eighth Defendant: LUKE RUSSELL NOLA and SANDRAMIRIKO BURGHAM; Ninth Defendants: DONG LENG and THU CHAN LENG; Tenth Defendant: BODY CORPORATE 327853
Court
High Court
Jurisdiction
New Zealand
Judgment Date
1 February 2022
Procedural Posture
Civil (property/unit Titles Dispute) / Pre Trial Determination of a Separate Legal Question on Enforceability of Registered Covenants
Outcome
Judgment for plaintiffs on the separate legal question: the 2004 covenants are enforceable as positive covenants running with the land against the first to ninth defendants; the contingent question of extinguishment not considered.
Legal Topics
Enforceability of Covenants, Positive Covenants Vs Covenant in Gross, Registration and Running of Covenants With Title, Interpretation and Incorporation of Subsidiary Documents, Extinguishment/modification of Covenants
Property Law Unit Titles Land Transfer Contract Law Enforceability of Covenants Positive Covenants Vs Covenant in Gross Registration and Running of Covenants With Title Interpretation and Incorporation of Subsidiary Documents +1 more

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Parties

LANDMARK PROPERTY HOLDINGS LIMITED

First Plaintiff/first Counterclaim Defendant

SGA INVESTMENTS HOLDING PTE LIMITED

Second Plaintiff/second Counterclaim Defendant

PURE CARE NEW ZEALAND LIMITED

Third Plaintiff/third Counterclaim Defendant

SHEN EMPIRE LIMITED

First Defendant

NUZCORP INDUSTRIES LIMITED

Second Defendant

ELLETT INVESTMENTS LIMITED

Third Defendant

KEGG 187 LIMITED

Fourth Defendant

BALMERE CAPITAL LIMITED

Fifth Defendant

ALLEY VIEW LIMITED

Sixth Defendant

QUINN COMMERCIAL HOLDINGS LIMITED

Seventh Defendant

LUKE RUSSELL NOLA and SANDRAMIRIKO BURGHAM

Eighth Defendant

DONG LENG and THU CHAN LENG

Ninth Defendants

BODY CORPORATE 327853

Tenth Defendant

Procedural Posture

Civil (property/unit Titles Dispute) / Pre Trial Determination of a Separate Legal Question on Enforceability of Registered Covenants

Legal Issues

  1. 1 Whether the land covenant registered in 2004 is enforceable against registered proprietors (first to ninth defendants)
  2. 2 Whether the covenants are positive covenants running with the land or covenants in gross
  3. 3 Whether ultra vires substituted Body Corporate rules undermine the covenants' enforceability

Ratio Decidendi

The annexure and expressly incorporated substituted rules together constituted a written positive covenant registered against the unit titles in 2004; the levy (scales) covenants relate to proprietors' unit title interests and beneficially affect the value and enjoyment of covenanted units as required by s126 PLA 1952, therefore the covenants run with the land and are enforceable against the registered proprietors (first to ninth defendants).

Court Disposition

Judgment for plaintiffs on the separate legal question: the 2004 covenants are enforceable as positive covenants running with the land against the first to ninth defendants; the contingent question of extinguishment not considered.

Orders

  • The land covenants registered by Transfer Instrument 5891151.6 dated 29 January 2004 are enforceable against the first to ninth defendants
  • No order made under s317(1)(e) to extinguish or modify the covenants because enforceability was established