New Zealand Case Law: Decisions & Judgments

Topic

Covenant in gross

Legal area

Court

13 Mar 2014

BOTANY LAND DEVELOPMENT LIMITED V AUCKLAND COUNCIL CA732/2013 [2014] NZCA 61 [13 March 2014]

Citation

(2014) 14 NZCPR 813
Court

Court of Appeal

The Court dismissed the appeal, holding that the Council has a reasonably arguable equitable interest sufficient to support the caveat because it may obtain an order for specific performance in respect of the offer obligation in clause 2 when occupation ceases and the trustees arguably repudiated that obligation by contracting to sell with vacant possession; further, it is arguable the registered encumbrance does not definitively prevent lodging the caveat under s137, and the court exercised its discretion to sustain the caveat pending substantive determination.
26 Nov 2010

PARIHOA FARMS LIMITED V RODNEY DISTRICT COUNCIL HC AK CIV-2009-404-0537

Citation

openlaw-5278d61b_e487_405c_8779_b2f68378c0b8.pdf
Court

High Court

Section 97 PLA07 applies to encumbrances registered as mortgages; 'all other obligations secured by the mortgage' is to be read broadly to include non‑monetary obligations secured by a rent charge, so the mortgagor cannot redeem by payment of the nominal sum alone while other secured obligations subsist; the encumbrance is indivisible and no partial discharge is warranted; no equitable relief available on these facts.
10 Sept 2010

OMAHA BEACH RESIDENTS' SOCIETY (INCORPORATED) AND GNS TRUST LIMITED V TOWNSEND BROOKER LIMITED, WILLIAMSON LIMITED, PAMELA RASPE, OMAHA PARK LIMITED CA CA527/2009

Citation

openlaw-3c78d8f5_2acd_4a60_9340_524a0e1c34ce.pdf
Court

Court of Appeal

The appeal is dismissed because there was no live controversy warranting declaratory relief and the Court will not overturn the High Court's discretionary refusal; questions about the covenant's enforceability (including whether it is a covenant in gross) must be decided in the context of a concrete dispute.
23 Apr 2010

PARIHOA FARMS LTD V RODNEY DISTRICT COUNCIL HC AK CIV-2009-404-000537

Citation

openlaw-2088aed7_ee84_40ac_a061_104736c0333c.pdf
Court

High Court

Court allowed partial exclusion of the defendant's affidavit evidence: paragraphs 9 and 30–54 and parts of 22 and 23 were excised as inadmissible; established in principle that evidence proving admitted facts is inadmissible and reserved leave to apply about specific paragraphs alleged to be excess; recognised affidavit was in wrong form and required conversion to a written brief; declined to preclude in principle the use of extrinsic evidence to interpret a registered instrument given developing authority, so refused to strike out all remaining contested evidence on relevance at the pre‑tria…
30 Jul 2009

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

Citation

openlaw-02eff05d_313d_47ef_a27f_3ba8e3659feb.pdf
Court

High Court

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.

New Zealand Case Law

BOTANY LAND DEVELOPMENT LIMITED V AUCKLAND COUNCIL CA732/2013 [2014] NZCA 61 [13 March 2014]

PARIHOA FARMS LIMITED V RODNEY DISTRICT COUNCIL HC AK CIV-2009-404-0537

OMAHA BEACH RESIDENTS' SOCIETY (INCORPORATED) AND GNS TRUST LIMITED V TOWNSEND BROOKER LIMITED, WILLIAMSON LIMITED, PAMELA RASPE, OMAHA PARK LIMITED CA CA527/2009

PARIHOA FARMS LTD V RODNEY DISTRICT COUNCIL HC AK CIV-2009-404-000537

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