ESTUARY CHT LP v MAYALL PROPERTY GROUP LIMITED [2020] NZHC 3079

ESTUARY CHT LP v MAYALL PROPERTY GROUP LIMITED [2020] NZHC 3079

The covenant was extinguished because the Flatbush area has become residentially zoned and the character and use of the neighbourhood have fundamentally changed, satisfying s 317(1)(a) and alternatively s 317(1)(b); there was no opposition and no substantial injury to any entitled person.

Source-derived case information.

Citation
[2020] NZHC 3079
Parties
Applicant: ESTUARY CHT LP; First Respondent: MAYALL PROPERTY GROUP LIMITED; Second Respondent: AUCKLAND COUNCIL; Third Respondent: DDL HOMES ORMISTON LIMITED; Fourth Respondents: TSAN FAI LO, CAN RONG LUO and WEIZHU ZENG
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 November 2020
Procedural Posture
Application Under Property Law Act 2007 S 316 / Judgment on Application to Extinguish Covenant (s 317)
Outcome
Covenant extinguished
Legal Topics
Modification or Extinguishment of Covenant, Section 317 Property Law Act 2007, Change of Neighbourhood, Restrictive Covenants
Property Law Land Law Covenants Civil Procedure Modification or Extinguishment of Covenant Section 317 Property Law Act 2007 Change of Neighbourhood Restrictive Covenants

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

ESTUARY CHT LP

Applicant

MAYALL PROPERTY GROUP LIMITED

First Respondent

AUCKLAND COUNCIL

Second Respondent

DDL HOMES ORMISTON LIMITED

Third Respondent

TSAN FAI LO, CAN RONG LUO and WEIZHU ZENG

Fourth Respondents

Procedural Posture

Application Under Property Law Act 2007 S 316 / Judgment on Application to Extinguish Covenant (s 317)

Legal Issues

  1. 1 Whether the covenant should be extinguished under s 317(1)(a) because of change since its creation in the character of the neighbourhood and use of the land
  2. 2 Whether the covenant should be extinguished under s 317(1)(b) because its continuation would impede reasonable use of the burdened land in a way not reasonably foreseen by the original parties
  3. 3 Whether any persons entitled would be substantially injured by extinguishment

Ratio Decidendi

The covenant was extinguished because the Flatbush area has become residentially zoned and the character and use of the neighbourhood have fundamentally changed, satisfying s 317(1)(a) and alternatively s 317(1)(b); there was no opposition and no substantial injury to any entitled person.

Court Disposition

Covenant extinguished

Orders

  • The land covenant created by Transfer 230833.1 from the Title to land at 200 Flatbush School Road, Flatbush, Auckland (Identifier NA99D/949, North Auckland Land Registry) is extinguished.
  • No order as to costs.