New Zealand Case Law: Decisions & Judgments

Topic

Encumbrance

Legal area

Court

13 Jul 2018

SPARK NEW ZEALAND TRADING LTD v CLEARSPAN PROPERTY ASSETS LTD [2018] NZCA 248 [13 July 2018]

Citation

[2018] NZCA 248
Court

Court of Appeal

The arrangement was a sale of an undivided share in the fee simple of the whole allotment coupled with encumbrances and personal exclusive-use covenants; because s 218(1)(a)(ii) requires a disposition 'of the fee simple to part of the allotment' and the encumbrances and covenants did not create or transfer an estate in land or destroy the tenancy in common, the arrangement did not constitute a 'subdivision of land' under s 218 RMA.
9 Nov 2015

NEWHAVEN WALDORF MANAGEMENT LIMITED v ALLEN [2015] NZHC 2770

Citation

[2015] NZHC 2770
Court

High Court

The Court held that (1) Jarrah units and owners are part of Newhaven/Newhaven Community under the encumbrance definitions; (2) clause 7(h) authorises the encumbrancee to levy for operating expenses of the Common Facilities and separately to levy for 'managing Newhaven' (management activities arising from clause 3 and clause 4(b)); (3) clause 7(c) permits the encumbrancee to call meetings directly by written notice without routing requests through the committee; (4) the restraint of trade and Unit Titles Act defences fail — the encumbrance provisions are not invalid restraints and do not, as f…
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.
18 Oct 2013

AUCKLAND COUNCIL v MARGARET ELLEN PALLISTER, WENDY JUNE PALLISTER AND JILLIAN MARY MENZIES (AS TRUSTEES OF THE MARGARET E PALLISTER FAMILY TRUST) [2013] NZHC 2717

Citation

[2013] NZHC 2717
Court

High Court

The caveat was to be sustained because the Council has an arguable equitable interest sufficient to support a caveat: the trustees' contract to sell with vacant possession arguably repudiates the Fourth Schedule obligations and entitles the Council to seek specific performance now; the registered encumbrance does not clearly protect the Fourth Schedule covenants so the caveat protects a distinct interest; the encumbrance has not been shown to have been terminated; accordingly the caveat must be maintained to preserve the Council's arguable rights and the Council must commence substantive proc…
6 Aug 2013

ABCDE INVESTMENTS LIMITED & ORS V VAN GOG CA345/2012 [2013] NZCA 351

Citation

(2013) 14 NZCPR 736 (CA)
Court

Court of Appeal

Clause 3(1) of the encumbrance, read plainly, unconditionally grants the encumbrancee an exclusive right to exercise the letting service and creates an enforceable restriction on owners who choose to let their units; the second part of clause 3 merely acknowledges the managers' liberty to contract with the body corporate and does not qualify or render the first part conditional; therefore the encumbrance is enforceable and the appeal fails.
23 Oct 2012

NAVILLUSO HOLDINGS LIMITED V DAVIDSON HC NAP CIV-2012-441-000550

Citation

openlaw-511a19cc_8c99_4418_945e_b5a3349e7147.pdf
Court

High Court

The court held Navilluso established a reasonably arguable case that the agreement created an encumbrance capable of registration because the parties intended to be bound, the monetary element required by s101 could be a nominal rentcharge to be specified by the encumbrancer, and the court would give effect to the parties' intention by permitting registration with a nominal sum; accordingly the caveat shall not lapse.
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.
16 Apr 2010

MERERE V JACKSON MEWS MANAGEMENT LIMITED SC 121/2009

Citation

SC 121/2009
Court

Supreme Court

The Property Law Act 2007 applies and s97(2) unambiguously requires payment of all secured amounts and performance of all other obligations before a discharge is required; a nominal payment did not entitle the applicant to a discharge and the proposed appeal had no real prospect of success.
6 Oct 2008

JANICE MARY MENERE, RUPERT OLIVER SMITH AND KELLEE ANN MENERE V JACKSON MEWS MANAGEMENT LIMITED HC WN CIV 2008-485-562

Citation

openlaw-3ceb92ee_66c7_4476_a74a_0594feb9838c.pdf
Court

High Court

The registered memorandum met the statutory definition of a mortgage because it is a charge on land securing a rentcharge under the Land Transfer Act; accordingly the statutory equitable right of redemption in s81 Property Law Act 1952 entitles the plaintiffs to redeem by payment of all money owing, so payment of $9.90 required the defendant to discharge the encumbrance.
14 Aug 2008

BARRY WALTERS AND ANOR V TAYLOR MARINE LIMITED AND ORS HC AK CIV 2006-404-2772

Citation

openlaw-47c74115_36a1_44ca_9993_70bd7c01e798.pdf
Court

High Court

Where plaintiffs promptly discontinued proceedings against the fourth defendant upon receipt of affidavit evidence undermining their earlier brief, they did not persist with a hopeless case; indemnity costs were refused and the fourth defendant was awarded costs on a 2B basis with adjusted time allowances (1.5 days for commencement of defence, 0.5 day for hearing) and specified itemised amounts; disbursements fixed by the registrar were also allowed.