COOKESON PROPERTIES LTD v GRAY, & ORS [2016] NZHC 2112

COOKESON PROPERTIES LTD v GRAY, & ORS [2016] NZHC 2112

The Court was satisfied there had been a change in the nature and extent of use of Lots 12 and 13 since the covenants were created and that the narrowly framed modifications proposed (to permit continued use as a childcare/nursery centre) would not substantially injure any person entitled to the benefit of the covenants; accordingly the application under s 317 was granted and the specified covenant clauses were modified, with costs ordered to the applicant.

Citation
[2016] NZHC 2112
Parties
Applicant: COOKESON PROPERTIES LIMITED; First Respondents: COREY FRANCIS GRAY, LYNELLETONI GRAY AND LATIMER TRUSTEES 2011 LIMITED; Second Respondents: DENNIS ALAN CHAPMAN, DEBORAH BEATRICE CHAPMAN AND ALISTAIR JOHN CHAPMAN; Third Respondents: ANDREW JOHN ROBERTSON AND PAULA JANE MEAD-ROBERTSON; Fourth Respondents: ZANE BARRY LOW AND ANGELA MARIA LOW; Fifth Respondents: GARETH HOWARD MILTON AND NICOLA ANNETTE CHIVERS; Sixth Respondents: REGAN CHARLES GRAHAM AND KELLY SUSAN DUNNE; Seventh Respondents: BLAIR ANDREW WILLIAMS AND KARYN TERESA WILSON; Eighth Respondents: IAN DOUGLAS ORMANDY AND JEANETTE ANN ORMANDY; Ninth Respondents: STEPHEN ROBERT RICKERBY AND JANFREY LOUISE RICKERBY; Tenth Respondents: RONAN JUDE PHELAN AND LISA ALISON PHELAN; Eleventh Respondents: CHRISTOPHER GRAHAM LANG AND VIRGINIA JADE LANG; Twelfth Respondents: BEVERLY ANNE LETHLEAN, ANTHONY JAMES LETHLEAN AND NEW ZEALAND TRUSTEE SERVICES LIMITED; Thirteenth Respondents: MAREK KUZIEL, KATARINA KUZIEL AND ATTORNEYS & TRUSTEES LIMITED; Fourteenth Respondents: CHRISTOPHER KEITH O'LEARY AND SUZANNE DEIDRE O'LEARY; Fifteenth Respondents: LUKE DYLAN UEDA-SARSON AND KEIKO UEDA-SARSON; Sixteenth Respondents: CRAIG RUSSELL FARRANT AND SARILOUISE FARRANT; Seventeenth Respondents: STEPHEN ANTHONY MOORE AND BETSIE VAN DE KOOT
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 September 2016
Procedural Posture
Civil Modification of Restrictive Covenants Under Property Law Act 2007 / Judgment on Originating Application (hearing 29 August 2016; Judgment 6 September 2016)
Outcome
Application for modification of restrictive covenants granted pursuant to s 317 Property Law Act 2007; costs awarded to applicant; leave reserved for consequential orders.
Legal Topics
Modification of Covenants, Restrictive Covenants, Service of Proceedings, Costs
Property Law Civil Procedure Modification of Covenants Restrictive Covenants Service of Proceedings Costs

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Parties

COOKESON PROPERTIES LIMITED

Applicant

COREY FRANCIS GRAY, LYNELLETONI GRAY AND LATIMER TRUSTEES 2011 LIMITED

First Respondents

DENNIS ALAN CHAPMAN, DEBORAH BEATRICE CHAPMAN AND ALISTAIR JOHN CHAPMAN

Second Respondents

ANDREW JOHN ROBERTSON AND PAULA JANE MEAD-ROBERTSON

Third Respondents

ZANE BARRY LOW AND ANGELA MARIA LOW

Fourth Respondents

GARETH HOWARD MILTON AND NICOLA ANNETTE CHIVERS

Fifth Respondents

REGAN CHARLES GRAHAM AND KELLY SUSAN DUNNE

Sixth Respondents

BLAIR ANDREW WILLIAMS AND KARYN TERESA WILSON

Seventh Respondents

IAN DOUGLAS ORMANDY AND JEANETTE ANN ORMANDY

Eighth Respondents

STEPHEN ROBERT RICKERBY AND JANFREY LOUISE RICKERBY

Ninth Respondents

RONAN JUDE PHELAN AND LISA ALISON PHELAN

Tenth Respondents

CHRISTOPHER GRAHAM LANG AND VIRGINIA JADE LANG

Eleventh Respondents

BEVERLY ANNE LETHLEAN, ANTHONY JAMES LETHLEAN AND NEW ZEALAND TRUSTEE SERVICES LIMITED

Twelfth Respondents

MAREK KUZIEL, KATARINA KUZIEL AND ATTORNEYS & TRUSTEES LIMITED

Thirteenth Respondents

CHRISTOPHER KEITH O'LEARY AND SUZANNE DEIDRE O'LEARY

Fourteenth Respondents

LUKE DYLAN UEDA-SARSON AND KEIKO UEDA-SARSON

Fifteenth Respondents

CRAIG RUSSELL FARRANT AND SARILOUISE FARRANT

Sixteenth Respondents

STEPHEN ANTHONY MOORE AND BETSIE VAN DE KOOT

Seventeenth Respondents

Procedural Posture

Civil Modification of Restrictive Covenants Under Property Law Act 2007 / Judgment on Originating Application (hearing 29 August 2016; Judgment 6 September 2016)

Legal Issues

  1. 1 Whether s 317 Property Law Act 2007 authorises modification given change in use since creation of covenants
  2. 2 Whether proposed modifications would substantially injure any person entitled to benefit of covenants
  3. 3 Whether service and notice were adequate

Ratio Decidendi

The Court was satisfied there had been a change in the nature and extent of use of Lots 12 and 13 since the covenants were created and that the narrowly framed modifications proposed (to permit continued use as a childcare/nursery centre) would not substantially injure any person entitled to the benefit of the covenants; accordingly the application under s 317 was granted and the specified covenant clauses were modified, with costs ordered to the applicant.

Court Disposition

Application for modification of restrictive covenants granted pursuant to s 317 Property Law Act 2007; costs awarded to applicant; leave reserved for consequential orders.

Orders

  • Modify covenant 7540081-6 (Lot 13) clause 2 to read: 'Not to construct or permit to be constructed or placed on the land any building, structure or other improvements other than a dwelling or child care and/or nursery centre or similar building and the appurtenances thereto.'
  • Modify covenant 7540081-6 (Lot 13) clause 8 to read: 'No fencing over 1200mm 1800mm high shall be erected closer than 5 metres to any road frontage boundary provided that for the avoidance of doubt this restriction shall not apply to the western boundary of the Grantor's land.'