JOHNS v WU [2017] NZHC 2831

JOHNS v WU [2017] NZHC 2831

Summary judgment and striking out were refused because there are serious and triable questions as to the plaintiffs' standing, the proper construction of the covenant (including the meaning of 'heretofore' and whether the covenant applies to subsequent dwellings), whether vendor approval was obtained prior to...

Source-derived case information.

Citation
[2017] NZHC 2831
Parties
Plaintiffs: Leslie Roy Johns and Leonie Mary Johns; Defendants: Yun Feng Wu and Xiao Wei Cheng
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 November 2017
Procedural Posture
Civil Property Covenant Dispute / Interlocutory (applications for Interim Injunction and Defendants' Summary Judgment/strike Out)
Outcome
Defendants' application for summary judgment and strike out dismissed; defendants' request to strike claim out denied; interim injunction application discontinued by plaintiffs; matter to proceed to trial on merits.
Legal Topics
Restrictive Covenant, Standing to Enforce Covenant, Interpretation of Deeds, Interim Injunction, Summary Judgment, Building and Resource Consents, Mandatory Injunction, Remedies and Discretion
Property Law Equity Civil Procedure Administrative Law Restrictive Covenant Standing to Enforce Covenant Interpretation of Deeds Interim Injunction +4 more

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Parties

Leslie Roy Johns and Leonie Mary Johns

Plaintiffs

Yun Feng Wu and Xiao Wei Cheng

Defendants

Procedural Posture

Civil Property Covenant Dispute / Interlocutory (applications for Interim Injunction and Defendants' Summary Judgment/strike Out)

Legal Issues

  1. 1 Whether the plaintiffs have standing to enforce the restrictive covenant
  2. 2 Proper construction of the covenant (meaning of 'heretofore', scope of 'remaining land')
  3. 3 Whether the covenant applies only to the first residential building or to any subsequent residential building

Ratio Decidendi

Summary judgment and striking out were refused because there are serious and triable questions as to the plaintiffs' standing, the proper construction of the covenant (including the meaning of 'heretofore' and whether the covenant applies to subsequent dwellings), whether vendor approval was obtained prior to commencement and whether the minimum cost threshold is met; factual and legal disputes preclude disposal without a full hearing.

Court Disposition

Defendants' application for summary judgment and strike out dismissed; defendants' request to strike claim out denied; interim injunction application discontinued by plaintiffs; matter to proceed to trial on merits.

Orders

  • Amended statement of claim to add Auckland Council to be served by 20 November 2017
  • First case management conference to be set down after 1 February 2018