DOAK & OR v ROLLANDER & ORS [2016] NZHC 1741

DOAK & OR v ROLLANDER & ORS [2016] NZHC 1741

The court held the second plaintiff's proposed use is not a 'commercial use' within clause 7 when that term is given its ordinary meaning informed by context; clause 7 should be read by ordinary meaning first and the District Plan only engaged if the use is established as commercial; incidental office/administration does not render the overall use commercial; declaratory relief granted to the plaintiffs.

Citation
[2016] NZHC 1741
Parties
First Plaintiff: William Neville Doak; Second Plaintiff: Children's Health Camps - The New Zealand Foundation for Child and Family Health and Development (Stand Children's Services); First Defendants: Brett Davis Rollander; Kirsty-Anne Rollander; Vareena Stevens; Jill Burke; Richard Burke; Monica Young; Second Defendant: Patricia Kay Huff; Third Defendants: Stephen John Macklin; Adele Margaret Macklin; Fourth Defendants: Robert Harold Wylie Wakelin; Joanne Isabell Wakelin; Burrowes Trustee Services (2013) Limited; Fifth Defendants: Neil Trevor Turner; Jean Elizabeth Turner; Kapiti Trust Company Limited; Sixth Defendants: Christopher John Lamain; Carol Ann Lamain; Seventh Defendants: Carol Lillian Webster; Stuart Gordon Webster; Hercusking Trustees Limited; Interested Party: Kapiti Coast District Council
Court
High Court
Jurisdiction
New Zealand
Judgment Date
29 July 2016
Procedural Posture
Declaratory Judgment (declaratory Judgments Act 1908) / Judgment (hearing 14 July 2016; Judgment Delivered 29 July 2016)
Outcome
Declaration granted: the pleaded intended use by the second plaintiff is not a commercial use for the purposes of clause 7 of the restrictive covenant; costs awarded to plaintiffs on a 2B basis against first, third, sixth and seventh defendants; Kapiti Coast District Council to bear its own costs; judgment does not...
Legal Topics
Restrictive Covenant Interpretation, Definition of Commercial Use, Declaratory Relief, Residential Land Use Vs Commercial Activity
Property Law Restrictive Covenants Contract Interpretation Charity Law Resource Management/planning Law Restrictive Covenant Interpretation Definition of Commercial Use Declaratory Relief +1 more

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Parties

William Neville Doak

First Plaintiff

Children's Health Camps - The New Zealand Foundation for Child and Family Health and Development (Stand Children's Services)

Second Plaintiff

Brett Davis Rollander; Kirsty-Anne Rollander; Vareena Stevens; Jill Burke; Richard Burke; Monica Young

First Defendants

Patricia Kay Huff

Second Defendant

Stephen John Macklin; Adele Margaret Macklin

Third Defendants

Robert Harold Wylie Wakelin; Joanne Isabell Wakelin; Burrowes Trustee Services (2013) Limited

Fourth Defendants

Neil Trevor Turner; Jean Elizabeth Turner; Kapiti Trust Company Limited

Fifth Defendants

Christopher John Lamain; Carol Ann Lamain

Sixth Defendants

Carol Lillian Webster; Stuart Gordon Webster; Hercusking Trustees Limited

Seventh Defendants

Kapiti Coast District Council

Interested Party

Procedural Posture

Declaratory Judgment (declaratory Judgments Act 1908) / Judgment (hearing 14 July 2016; Judgment Delivered 29 July 2016)

Legal Issues

  1. 1 Whether the second plaintiff's intended use constitutes 'commercial use' for the purposes of clause 7 of the restrictive covenant
  2. 2 Whether clause 7 must be interpreted by reference to the Kapiti Coast District Plan/code of ordinances rather than ordinary meaning
  3. 3 Whether a partial or subsidiary commercial use of part of a building breaches the covenant

Ratio Decidendi

The court held the second plaintiff's proposed use is not a 'commercial use' within clause 7 when that term is given its ordinary meaning informed by context; clause 7 should be read by ordinary meaning first and the District Plan only engaged if the use is established as commercial; incidental office/administration does not render the overall use commercial; declaratory relief granted to the plaintiffs.

Court Disposition

Declaration granted: the pleaded intended use by the second plaintiff is not a commercial use for the purposes of clause 7 of the restrictive covenant; costs awarded to plaintiffs on a 2B basis against first, third, sixth and seventh defendants; Kapiti Coast District Council to bear its own costs; judgment does not...

Orders

  • Declaration that the second plaintiff's intended use as pleaded is not a commercial use for the purposes of clause 7 of the restrictive covenant
  • Costs to plaintiffs on a 2B basis together with reasonable disbursements, payable jointly and severally by the first, third, sixth and seventh defendants; Registrar to fix if necessary