WILLIAMSON v PHILLIPS [2023] NZHC 2177

WILLIAMSON v PHILLIPS [2023] NZHC 2177

The Court granted the variation because procedural prerequisites (leave and service) had been satisfied, the territorial authority consented, the majority of affected landowners consented, and the remaining respondents did not oppose; therefore the draft orders were appropriate and were made.

Citation
[2023] NZHC 2177
Parties
First Applicant: Trudy Helen Williamson; First Applicant: Emma Helen Hewson; First Applicant (trust): T E C Trust; Second Applicant: Warnorbill Limited; First Respondent: Simon John Phillips; First Respondent: Lisa Ann Phillips; Second Respondent: Graeme Desmond Riley; Third Respondent: Jessica Standfield; Third Respondent: Dylan James Pope; Fourth Respondent: Gerard Dominic O'Reilly; Fourth Respondent: Jane Emily O'Reilly; Fifth Respondent: James Stewart Parkinson; Fifth Respondent: Rennae Denise Taylor; Sixth Respondent: Sharon Elizabeth Inch; Sixth Respondent: Kelvin Gregory Inch; Seventh Respondent: Graham William Todd; Seventh Respondent: Emma Kate Todd; Eighth Respondent: Hamish Alistair McLean; Eighth Respondent: Wendy Louise McLean
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 August 2023
Procedural Posture
Application to Vary a Restrictive Covenant Under Part 19 High Court Rules and Ss 316 317 Property Law Act 2007 / Hearing and Oral Judgment (application Determined)
Outcome
Application to vary the covenant granted
Legal Topics
Variation of Covenant, Service and Notice, Consent of Territorial Authority
Property Law Civil Procedure Variation of Covenant Service and Notice Consent of Territorial Authority

Case Brief

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Parties

Trudy Helen Williamson

First Applicant

Emma Helen Hewson

First Applicant

T E C Trust

First Applicant (trust)

Warnorbill Limited

Second Applicant

Simon John Phillips

First Respondent

Lisa Ann Phillips

First Respondent

Graeme Desmond Riley

Second Respondent

Jessica Standfield

Third Respondent

Dylan James Pope

Third Respondent

Gerard Dominic O'Reilly

Fourth Respondent

Jane Emily O'Reilly

Fourth Respondent

James Stewart Parkinson

Fifth Respondent

Rennae Denise Taylor

Fifth Respondent

Sharon Elizabeth Inch

Sixth Respondent

Kelvin Gregory Inch

Sixth Respondent

Graham William Todd

Seventh Respondent

Emma Kate Todd

Seventh Respondent

Hamish Alistair McLean

Eighth Respondent

Wendy Louise McLean

Eighth Respondent

Procedural Posture

Application to Vary a Restrictive Covenant Under Part 19 High Court Rules and Ss 316 317 Property Law Act 2007 / Hearing and Oral Judgment (application Determined)

Legal Issues

  1. 1 Whether the court should vary the restrictive covenant under ss 316-317 Property Law Act 2007
  2. 2 Whether leave and service requirements under Part 19 High Court Rules were satisfied
  3. 3 Whether consent or non-opposition of affected parties and the territorial authority justifies making the proposed orders

Ratio Decidendi

The Court granted the variation because procedural prerequisites (leave and service) had been satisfied, the territorial authority consented, the majority of affected landowners consented, and the remaining respondents did not oppose; therefore the draft orders were appropriate and were made.

Court Disposition

Application to vary the covenant granted

Orders

  • Orders made in accordance with the terms of the draft document presented to the Court
  • Earlier orders granting leave to file and for service made by Associate Judge Paulsen on 3 July 2023 are recorded