KAIMAI PROPERTIES LTD v QUEEN ELIZABETH THE SECOND NATIONAL TRUST [2023] NZHC 3433 [6 December 2023]

KAIMAI PROPERTIES LTD v QUEEN ELIZABETH THE SECOND NATIONAL TRUST [2023] NZHC 3433 [6 December 2023]

Court held s 22(1) is an enabling discretionary provision and does not require the Trust to treat and agree with all holders of registered or unregistered interests; plaintiffs' proven interests were a discharged mortgage and a profit‑à‑prendre confined to the mapped quarry zone which the covenant did not affect; registration produced an indefeasible title and no convincing fraud/in‑personam or manifestly unjust statutory exception under the 2017 Act was established; the s 22A refusal was lawful because unanimity was not achieved and adequate reasons were provided; equitable fiduciary and "subject to" arguments failed and plaintiffs' causes of action dismissed.

Citation
[2023] NZHC 3433
Parties
First Plaintiff: Kaimai Properties Limited; Second Plaintiff: Bartons Kaimai Farm Limited; First Defendant: Queen Elizabeth the Second National Trust; Second Defendant: Registrar‑General of Land
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 December 2023
Procedural Posture
Declaratory Judgment and Judicial Review / High Court Judgment on Merits (hearing 4–7 Sep 2023; Judgment 6 Dec 2023)
Outcome
All plaintiffs' causes of action dismissed; judgment for first defendant (Queen Elizabeth the Second National Trust); costs awarded to first defendant
Legal Topics
Open Space Covenant (qeii Act S 22), Variation of Covenant (s 22 A), Indefeasibility of Title, Unregistered Interests (profit À Prendre, Option, Expansion Rights), Mortgage Priorities, Judicial Review and Amenability, Fiduciary Duty, Abuse of Process (henderson V Henderson)
Property Law Administrative Law Equity and Trusts Statutory Interpretation Land Registration/torrens System Open Space Covenant (qeii Act S 22) Variation of Covenant (s 22 A) Indefeasibility of Title +5 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 5 Authorities cited 17 Party arguments 2 Amounts and remedies 7
Sign in to unlock

Parties

Kaimai Properties Limited

First Plaintiff

Bartons Kaimai Farm Limited

Second Plaintiff

Queen Elizabeth the Second National Trust

First Defendant

Registrar‑General of Land

Second Defendant

Procedural Posture

Declaratory Judgment and Judicial Review / High Court Judgment on Merits (hearing 4–7 Sep 2023; Judgment 6 Dec 2023)

Legal Issues

  1. 1 Whether s 22(1) QEII Act obliged the Trust to "treat and agree" with holders of registered and unregistered interests prior to obtaining an open space covenant
  2. 2 Whether the Trust's registered open space covenant was taken "subject to" pre‑existing unregistered interests or otherwise affected plaintiffs' rights
  3. 3 Whether the Trust's refusal under s 22A to vary the covenant was amenable to judicial review and lawful

Ratio Decidendi

Court held s 22(1) is an enabling discretionary provision and does not require the Trust to treat and agree with all holders of registered or unregistered interests; plaintiffs' proven interests were a discharged mortgage and a profit‑à‑prendre confined to the mapped quarry zone which the covenant did not affect; registration produced an indefeasible title and no convincing fraud/in‑personam or manifestly unjust statutory exception under the 2017 Act was established; the s 22A refusal was lawful because unanimity was not achieved and adequate reasons were provided; equitable fiduciary and "subject to" arguments failed and plaintiffs' causes of action dismissed.

Court Disposition

All plaintiffs' causes of action dismissed; judgment for first defendant (Queen Elizabeth the Second National Trust); costs awarded to first defendant

Orders

  • Plaintiffs' proceedings dismissed
  • First defendant entitled to costs; parties to agree or, if unable, file memoranda on costs within time stipulated by the Court