OMAHA BEACH RESIDENTS SOCIETY INC AND ANOR V TOWNSEND BROOKER LTD AND ORS HC AK CIV2008-404-7865

OMAHA BEACH RESIDENTS SOCIETY INC AND ANOR V TOWNSEND BROOKER LTD AND ORS HC AK CIV2008-404-7865

Court refused to grant any declaration. It found the question whether the covenant is a covenant in gross was arguable in favour of the defendants but left it undecided; because there was no actual controversy and the potential declaration would have wide effect on numerous non‑parties the court declined to exercise...

Source-derived case information.

Citation
openlaw-02eff05d_313d_47ef_a27f_3ba8e3659feb.pdf
Parties
First Applicant: Omaha Beach Residents Society Incorporated; Second Applicant: GNS Trust Limited; First Defendant: Townsend Brooker Limited; Second Defendant: Williamson Limited; Third Defendant: Pamela Raspe; Fourth Defendant: Omaha Park Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 July 2009
Procedural Posture
Application for Declaratory Judgment Under the Declaratory Judgments Act 1908 / Judgment Delivered (declaratory Relief)
Outcome
Claim and counterclaim dismissed; no declaratory judgment granted
Legal Topics
Restrictive Covenant, Covenant in Gross, Enforceability Against Successors in Title, Declaratory Relief Discretion, Standing, RMA Submissions and Appeals
Property Law Restrictive Covenants Resource Management Act / Planning Law Declaratory Relief Restrictive Covenant Covenant in Gross Enforceability Against Successors in Title Declaratory Relief Discretion +2 more

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Summary, issues, holding and outcome

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Parties

Omaha Beach Residents Society Incorporated

First Applicant

GNS Trust Limited

Second Applicant

Townsend Brooker Limited

First Defendant

Williamson Limited

Second Defendant

Pamela Raspe

Third Defendant

Omaha Park Limited

Fourth Defendant

Procedural Posture

Application for Declaratory Judgment Under the Declaratory Judgments Act 1908 / Judgment Delivered (declaratory Relief)

Legal Issues

  1. 1 Whether the covenant is a covenant in gross
  2. 2 Whether the covenant binds successors in title
  3. 3 Whether the covenant creates a burden on the servient land

Ratio Decidendi

Court refused to grant any declaration. It found the question whether the covenant is a covenant in gross was arguable in favour of the defendants but left it undecided; because there was no actual controversy and the potential declaration would have wide effect on numerous non‑parties the court declined to exercise its discretionary power to make a declaratory judgment and dismissed claim and counterclaim.

Court Disposition

Claim and counterclaim dismissed; no declaratory judgment granted

Orders

  • Claim and counterclaim dismissed
  • No declaration issued