BODY CORPORATE 341188 V DISTRICT COURT AT AUCKLAND HC AK CIV-2012-404-2931

BODY CORPORATE 341188 V DISTRICT COURT AT AUCKLAND HC AK CIV-2012-404-2931

The District Court order extinguishing the covenants was quashed because affected parties (the Applicants and other registered proprietors) were not afforded an opportunity to be heard; the Court restored the Memorandum to the title records and ordered joinder of all registered proprietors so that the substantive property rights dispute can be determined with all interested parties before it proceeds.

Citation
openlaw-a30eb1c9_372f_4259_9c2c_cdeb0fbe5df0.pdf
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
Court
High Court
Jurisdiction
New Zealand
Judgment Date
7 September 2012
Procedural Posture
Judicial Review and Declaratory Relief; Property Dispute / Part‑heard; Adjourned Pending Joinder and Further Directions
Outcome
District Court orders quashed; Memorandum restored to title records; additional respondents (all registered proprietors of units and future development units) added; proceeding adjourned for joinder and case management
Legal Topics
Covenants, Easements and Parking Rights, Extinguishment of Covenants S316 Property Law Act 2007, Service and Joinder of Parties, Restoration of Removed Title Instruments
Property Law Civil Procedure Judicial Review Covenants Easements and Parking Rights Extinguishment of Covenants S316 Property Law Act 2007 Service and Joinder of Parties Restoration of Removed Title Instruments

Case Brief

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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

Procedural Posture

Judicial Review and Declaratory Relief; Property Dispute / Part‑heard; Adjourned Pending Joinder and Further Directions

Legal Issues

  1. 1 Whether the District Court order extinguishing covenants under s316 Property Law Act 2007 was valid given lack of notice to affected parties
  2. 2 Whether the Memorandum of Land Covenants grants the proprietor of lot 2 rights to use part of lot 4 for parking and access
  3. 3 Whether the Memorandum removed from title should be restored following quashing of the District Court order

Ratio Decidendi

The District Court order extinguishing the covenants was quashed because affected parties (the Applicants and other registered proprietors) were not afforded an opportunity to be heard; the Court restored the Memorandum to the title records and ordered joinder of all registered proprietors so that the substantive property rights dispute can be determined with all interested parties before it proceeds.

Court Disposition

District Court orders quashed; Memorandum restored to title records; additional respondents (all registered proprietors of units and future development units) added; proceeding adjourned for joinder and case management

Orders

  • Quash District Court orders in CIV-11-004-2002 dated 18 October 2011 and sealed 20 October 2011
  • Respondents prohibited from acting in reliance on the quashed orders