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

There was a serious question to be tried on both the judicial review and interpretation of the land covenant; the balance of convenience and overall justice favored interim relief preserving the pre‑District Court status quo of longstanding parking use by applicants; respondents' refusal to give undertakings and active operation of Lot 4 as a paid carpark increased risk of injustice to applicants, therefore interim orders were granted to restrain respondents from denying access and creating adverse interests pending full hearing.

Citation
openlaw-bc8faf85_18f4_4f29_8aea_c433102a8779.pdf
Parties
First Applicant: Body Corporate 341188; Second Eleventh Applicants: George Victor Wilkinson and Jeremy K Collinge & Ors; 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
13 June 2012
Procedural Posture
Judicial Review and Interlocutory Application for Interim Injunctions / Interim/interlocutory
Outcome
Interim orders granted preserving pre‑existing parking arrangements and preventing creation of adverse interests; costs awarded to applicants on 2B basis
Legal Topics
Interim Injunction, Extinguishment of Covenants, Natural Justice, Memorandum of Encumbrance, Balance of Convenience
Civil Procedure Property Law Land Law Administrative Law Interim Injunction Extinguishment of Covenants Natural Justice Memorandum of Encumbrance +1 more

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Parties

Body Corporate 341188

First Applicant

George Victor Wilkinson and Jeremy K Collinge & Ors

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 Interlocutory Application for Interim Injunctions / Interim/interlocutory

Legal Issues

  1. 1 Whether there is a serious question to be tried on judicial review of the District Court order extinguishing covenants
  2. 2 Whether the land covenant conferred enforceable rights to use the carparks on Lot 4
  3. 3 Whether interim relief preserving the pre‑existing parking arrangement should be granted pending trial

Ratio Decidendi

There was a serious question to be tried on both the judicial review and interpretation of the land covenant; the balance of convenience and overall justice favored interim relief preserving the pre‑District Court status quo of longstanding parking use by applicants; respondents' refusal to give undertakings and active operation of Lot 4 as a paid carpark increased risk of injustice to applicants, therefore interim orders were granted to restrain respondents from denying access and creating adverse interests pending full hearing.

Court Disposition

Interim orders granted preserving pre‑existing parking arrangements and preventing creation of adverse interests; costs awarded to applicants on 2B basis

Orders

  • Prohibiting Second and Third Respondents or their agents from creating any new interests in Lot 4 (DP 126975 identifier 221841) pending further order of the Court
  • Restraining Second and Third Respondents from denying the Applicants ongoing use of the carparks on Lot 4 pending further order of the Court