_x000b_CHAND v AUCKLAND COUNCIL [2020] NZHC 2422

_x000b_CHAND v AUCKLAND COUNCIL [2020] NZHC 2422

The Court accepted the evidence of the respondents' expert valuer (Peter Bates) that the proposed subdivision would significantly reduce the value and enjoyment of neighbouring properties; that reduction constitutes substantial injury under s 317(1)(d); therefore the statutory conditions for modification were not met and the application was dismissed.

Citation
[2020] NZHC 2422
Parties
Applicants: Parwati Chand, Ram Chand and Khan & Associates Trustee Company (No.110) Limited; First Respondent: Auckland Council; Second Respondents: Chamroeun Kong, Kimheng Chhit and Sokchan Arun Kong; Third Respondents: Xuanyu He and Qiuyu Su; Fourth Respondents: Raad Elias and Sahar Jameel Bahnam; Fifth Respondents: Rajesh Prasad, Vijay Ragniprasad and Dr Thomas Limited; Sixth Respondents: William Gordon Chiplin and Thuy Thi Chiplin; Seventh Respondents: Lim Thi Hoang, Trac Xuan Bui, Tong Duc Bui and Men Thi Luu
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 September 2020
Procedural Posture
Application to Modify a Restrictive Covenant Under the Property Law Act 2007 / Judgment
Outcome
Application dismissed
Legal Topics
Modification/extinguishment of Restrictive Covenant, S 316 and S 317 Property Law Act 2007, Compensation for Diminution in Value, Valuation Evidence
Property Law Restrictive Covenants Civil Litigation Modification/extinguishment of Restrictive Covenant S 316 and S 317 Property Law Act 2007 Compensation for Diminution in Value Valuation Evidence

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Parties

Parwati Chand, Ram Chand and Khan & Associates Trustee Company (No.110) Limited

Applicants

Auckland Council

First Respondent

Chamroeun Kong, Kimheng Chhit and Sokchan Arun Kong

Second Respondents

Xuanyu He and Qiuyu Su

Third Respondents

Raad Elias and Sahar Jameel Bahnam

Fourth Respondents

Rajesh Prasad, Vijay Ragniprasad and Dr Thomas Limited

Fifth Respondents

William Gordon Chiplin and Thuy Thi Chiplin

Sixth Respondents

Lim Thi Hoang, Trac Xuan Bui, Tong Duc Bui and Men Thi Luu

Seventh Respondents

Procedural Posture

Application to Modify a Restrictive Covenant Under the Property Law Act 2007 / Judgment

Legal Issues

  1. 1 Whether the restrictive covenant should be modified or extinguished under s 317 Property Law Act 2007
  2. 2 Whether the proposed modification would substantially injure any person entitled (s 317(1)(d))
  3. 3 Discretionary exercise of the court's power if statutory preconditions met

Ratio Decidendi

The Court accepted the evidence of the respondents' expert valuer (Peter Bates) that the proposed subdivision would significantly reduce the value and enjoyment of neighbouring properties; that reduction constitutes substantial injury under s 317(1)(d); therefore the statutory conditions for modification were not met and the application was dismissed.

Court Disposition

Application dismissed

Orders

  • Application to modify the restrictive covenant dismissed
  • Costs awarded to the third, fourth and fifth respondents on a 2B basis