TAYLOR v SMALL [2018] NZHC 2785

TAYLOR v SMALL [2018] NZHC 2785

The covenant language must be read objectively in context: the phrase 'a new single dwelling house' regulates the type (a single‑family dwelling) not the numeric density, and the words 'or any part thereof' permit a single dwelling on any part of the defined servient lands rather than imposing a cap of three...

Source-derived case information.

Citation
(2018) 19 NZCPR 917
Parties
First Plaintiffs: WILLIAM PETER TAYLOR AND SUSANMARY TAYLOR; Second Plaintiffs: SCOTT KERRY JACKSON AND SARAHANNE JACKSON; Third Plaintiffs: RICHARD DONALD JOHNSTON AND RACHEL ELIZABETH JOHNSTON; Fourth Plaintiffs: TREVOR FRANK SAVORY AND SALLIEANN RENWICK; First Defendants: GEOFFREY CLEMMENT SMALL AND ARIA SMALL; Second Defendant: BOMBAY INVESTMENTS LIMITED; Interested Parties: FEI WANG AND YAO FENG QI
Court
High Court
Jurisdiction
New Zealand
Judgment Date
29 October 2018
Procedural Posture
Declaratory Judgment Application Under the Declaratory Judgments Act 1908 / Judgment Delivered 29 October 2018 After Hearing 17 September 2018
Outcome
Application granted in part and dismissed in part: declaration that the equestrian facilities building breaches the restrictive covenants granted; declaration sought that the Smalls' land is limited to three dwellings refused; injunctions to prevent further dwellings and to require removal of the building refused;...
Legal Topics
Restrictive Covenants, Interpretation of Registered Instruments and Extrinsic Evidence, Estoppel (by Silence/convention/representation), Injunctions and Discretionary Remedies, Declaratory Relief
Property Law Equity Civil Procedure Contract Interpretation Restrictive Covenants Interpretation of Registered Instruments and Extrinsic Evidence Estoppel (by Silence/convention/representation) Injunctions and Discretionary Remedies +1 more

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Parties

WILLIAM PETER TAYLOR AND SUSANMARY TAYLOR

First Plaintiffs

SCOTT KERRY JACKSON AND SARAHANNE JACKSON

Second Plaintiffs

RICHARD DONALD JOHNSTON AND RACHEL ELIZABETH JOHNSTON

Third Plaintiffs

TREVOR FRANK SAVORY AND SALLIEANN RENWICK

Fourth Plaintiffs

GEOFFREY CLEMMENT SMALL AND ARIA SMALL

First Defendants

BOMBAY INVESTMENTS LIMITED

Second Defendant

FEI WANG AND YAO FENG QI

Interested Parties

Procedural Posture

Declaratory Judgment Application Under the Declaratory Judgments Act 1908 / Judgment Delivered 29 October 2018 After Hearing 17 September 2018

Legal Issues

  1. 1 Whether the restrictive covenants limited the number of new single dwelling houses that may be built on the Smalls' land
  2. 2 Whether the equestrian facilities building erected by the Smalls complies with the restrictive covenants (i.e. whether it is an ancillary or farm outbuilding permitted by the covenants)
  3. 3 Whether the plaintiffs are estopped from asserting their interpretation of the covenants

Ratio Decidendi

The covenant language must be read objectively in context: the phrase 'a new single dwelling house' regulates the type (a single‑family dwelling) not the numeric density, and the words 'or any part thereof' permit a single dwelling on any part of the defined servient lands rather than imposing a cap of three dwellings; the equestrian building breaches the covenant only because there is no associated dwelling house and therefore it cannot be said to be 'in keeping' with a dwelling, but otherwise the building is usual and reasonable for the rural use (keeping and training horses); the plaintiffs' estoppel arguments fail for lack of the necessary mutual assumption, clear representation or...

Court Disposition

Application granted in part and dismissed in part: declaration that the equestrian facilities building breaches the restrictive covenants granted; declaration sought that the Smalls' land is limited to three dwellings refused; injunctions to prevent further dwellings and to require removal of the building refused;...

Orders

  • Decline to make declaration sought in plaintiffs' first cause of action limiting maximum number of dwelling houses to three on the Smalls' land
  • Declare that the equestrian facilities complex erected by the Smalls is in breach of clause (i) of the Schedule to Covenants 3 and 4