AGD TRUSTEE LIMITED, v MILLBROOK COUNTRY CLUB LIMITED [2023] NZHC 2141

AGD TRUSTEE LIMITED, v MILLBROOK COUNTRY CLUB LIMITED [2023] NZHC 2141

The covenant was lawfully modified because substituting Millbrook Country Club Limited as the entity whose approval is required preserves the covenant's protective purpose, does not substantially injure dominant owners given Millbrook's representative governance and entrenched role in the development, and is...

Source-derived case information.

Citation
[2023] NZHC 2141
Parties
Applicant: AGD Trustee Limited; Applicant: J W Trustees (WSL) Limited; Applicant: Wayne Sydney Leach as trustee of the W S Family Trust; First Respondent: Millbrook Country Club Limited; Second Respondents: John Scott Fairclough and others; Third Respondent: Queenstown Lakes District Council
Court
High Court
Jurisdiction
New Zealand
Judgment Date
10 August 2023
Procedural Posture
Application to Modify Restrictive Covenant Under Property Law Act 2007 / Judgment After Hearing on Formal Proof (hearing 25 July 2023; Judgment Delivered 10 August 2023)
Outcome
Application granted and covenant modified as ordered
Legal Topics
Modification of Covenant S317 PLA, Substantial Injury Test, Change in Character/use of Dominant Land, Authority of Representative Body to Approve
Property Law Land Law Restrictive Covenants Easements Civil Procedure Modification of Covenant S317 PLA Substantial Injury Test Change in Character/use of Dominant Land +1 more

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Parties

AGD Trustee Limited

Applicant

J W Trustees (WSL) Limited

Applicant

Wayne Sydney Leach as trustee of the W S Family Trust

Applicant

Millbrook Country Club Limited

First Respondent

John Scott Fairclough and others

Second Respondents

Queenstown Lakes District Council

Third Respondent

Procedural Posture

Application to Modify Restrictive Covenant Under Property Law Act 2007 / Judgment After Hearing on Formal Proof (hearing 25 July 2023; Judgment Delivered 10 August 2023)

Legal Issues

  1. 1 Whether the covenant registered as instrument 6205027.7 should be modified under ss 316–317 PLA
  2. 2 Whether the proposed modification would substantially injure any dominant owners
  3. 3 Whether changes in subdivision and neighbourhood character justify modification

Ratio Decidendi

The covenant was lawfully modified because substituting Millbrook Country Club Limited as the entity whose approval is required preserves the covenant's protective purpose, does not substantially injure dominant owners given Millbrook's representative governance and entrenched role in the development, and is justified by material change in the subdivision and use of the dominant land; unique opposition was resolved by a substitute covenant protecting those owners' interests.

Court Disposition

Application granted and covenant modified as ordered

Orders

  • Modify easement instrument 6205027.7 registered against Lots 2 and 3 Deposited Plan 481724 (Records of Title 676274 and 676275) by (i) replacing all references to 'Grantee' in the instrument with 'Millbrook Country Club Limited' and (ii) inserting clause 11: 'For the avoidance of doubt, where this instrument...
  • The Registrar-General of Land shall note against all relevant titles that the Covenant has been modified in the terms ordered by this Court