BODY CORPORATE 341188 v DISTRICT COURT AT AUCKLANDC [2014] NZHC 442

BODY CORPORATE 341188 v DISTRICT COURT AT AUCKLANDC [2014] NZHC 442

The Instruments do not confer express or implied rights to use Area A or a right of way over Lot 4; any prior rights used by Lot 2 derived from ownership of an undivided one half share in Lot 4 and were lost on de-amalgamation; the District Court's extinguishment of the Land Covenant was quashed because interested parties were not properly informed/served and the Court was misled.

Citation
[2014] NZHC 442
Parties
First Applicant: Body Corporate 341188; Second Eleventh Applicants: George Victor Wilkinson and Jeremy K Collinge and others; First Respondent: District Court at Auckland; Second Respondent: Escrow Holdings Forty-One Limited; Third Respondent: Kallina Limited; Fourth Respondent: Auckland Council; Fifth Thirtieth Respondents: Chang Tjun Chong & Ors
Court
High Court
Jurisdiction
New Zealand
Judgment Date
12 March 2014
Procedural Posture
Judicial Review (declaratory Relief) / Judgment
Outcome
District Court order of 19 October 2011 quashed; Applicants' claims for declarations and equitable easement dismissed except to the extent of interim relief previously granted; Instruments remain binding on Lots 2, 3 and 4.
Legal Topics
Construction of Covenants, Right of Way, Parking Rights, Extinguishment of Covenants, Judicial Review, Service of Process, Costs
Property Law Land Covenants Easements Equity Procedural Law Construction of Covenants Right of Way Parking Rights +4 more

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Parties

Body Corporate 341188

First Applicant

George Victor Wilkinson and Jeremy K Collinge and others

Second Eleventh Applicants

District Court at Auckland

First Respondent

Escrow Holdings Forty-One Limited

Second Respondent

Kallina Limited

Third Respondent

Auckland Council

Fourth Respondent

Chang Tjun Chong & Ors

Fifth Thirtieth Respondents

Procedural Posture

Judicial Review (declaratory Relief) / Judgment

Legal Issues

  1. 1 Whether the Memorandum of Encumbrance and the Memorandum of Land Covenants confer an express right to use Area A or a right of way over Lot 4
  2. 2 Whether an implied term or equitable estoppel/equitable easement arises to confer parking or access rights
  3. 3 Whether prior amalgamation of undivided half share in Lot 4 afforded the rights and effect of de-amalgamation on those rights

Ratio Decidendi

The Instruments do not confer express or implied rights to use Area A or a right of way over Lot 4; any prior rights used by Lot 2 derived from ownership of an undivided one half share in Lot 4 and were lost on de-amalgamation; the District Court's extinguishment of the Land Covenant was quashed because interested parties were not properly informed/served and the Court was misled.

Court Disposition

District Court order of 19 October 2011 quashed; Applicants' claims for declarations and equitable easement dismissed except to the extent of interim relief previously granted; Instruments remain binding on Lots 2, 3 and 4.

Orders

  • The District Court order dated 19 October 2011 extinguishing the Land Covenant is quashed
  • Applicants' substantive declarations and other relief claims are declined except as previously granted in the interim judgment of 7 September 2012