New Zealand Case Law: Decisions & Judgments

Topic

Extinguishment of covenant

Legal area

Court

19 Oct 2022

WEST HOE FAMILY TRUSTEES LIMITED v FORSYTH and FORSYTH and OTHERS [2022] NZHC 2708

Citation

[2022] NZHC 2708
Court

High Court

The covenant was extinguished because the Court was satisfied that (1) the nature and extent of use of the benefited properties had materially changed (subdivision and multiple dwellings) reducing the covenant's benefit; (2) the neighbourhood's character had materially changed (residential intensification and commercial/industrial growth) diminishing the covenant's protection; (3) the covenant now impeded reasonable uses of the burdened property in ways not reasonably foreseeable in 1986; and (4) extinguishment would not substantially injure the benefited owners; accordingly the Court exercis…
30 Jun 2021

WOODCOCKS PROPERTY LTD v AUCKLAND COUNCIL [2021] NZHC 1600

Citation

[2021] NZHC 1600
Court

High Court

The covenant was modified because continuation in its existing form would impede the reasonable use of the burdened land for intensive residential subdivision requiring vesting of roads and reserves under the RMA, a use different from that reasonably foreseeable at the covenant's creation, and the proposed modification would not substantially injure any person entitled to the covenant's benefit.
5 May 2021

RCL HENLEY DOWNS LTD v RCL JACK’S POINT LTD & ORS v QUEENSTOWN LAKES DISTRICT COUNCIL [2021] NZHC 984

Citation

[2021] NZHC 984
Court

High Court

Applying s317(d) Property Law Act 2007 and the Synlait substantial-injury test, the Court held that extinguishment of the easement/covenant from proposed Lot 27 would not substantially injure any person entitled because QAC consented and the covenant confers no practical benefit; accordingly the covenant is extinguished from Lot 27 and from Lot 94 conditional on its vesting as reserve in the Council, with Registrar-General to note the extinguishment.
31 Jul 2019

Re YOURSECTION LIMITED [2019] NZHC 1825 .

Citation

[2019] NZHC 1825
Court

High Court

On the evidence the covenant could be extinguished under s317 because no recorded person currently holds the benefit and the Christchurch City Council has assumed responsibility for maintenance of the drain (rendering the covenant redundant); the court granted a conditional without‑notice order extinguishing the easement upon written confirmation from the Council that it will continue to maintain the drain.
1 Mar 2018

Auckland Council and Her Majesty the Queen [2018] NZHC 275

Citation

[2018] NZHC 275
Court

High Court

The Court ordered extinguishment of the restrictive covenant because the covenant was obsolete following repurposing of the land, obtaining the required consents was impracticable due to the large and increasing number of titles, and extinguishment would not cause detriment; the Originating Application could be heard without notice and the Registrar‑General must implement the order.
23 Feb 2018

ER XIA CAO, ER SHENG CAO and JUN WU v MAYALL PROPERTY GROUP LIMITED [2018] NZHC 225

Citation

[2018] NZHC 225
Court

High Court

The covenant was extinguished because rezoning and the residential redevelopment of the area rendered the covenant obsolete; the covenant itself contemplated termination on rezoning; vesting requirements under the RMA necessitate free titles; and extinguishment would not substantially injure any beneficiary, so s 317 PLA relief was appropriate.
5 Jul 2016

AUGUSTINE LAU v UMH GROUP LIMITED [2016] NZSC 82

Citation

[2016] NZSC 82
Court

Supreme Court

The application for leave to appeal was dismissed because the proposed appeal raised no matter of public importance and did not disclose a real risk of miscarriage of justice; the Court of Appeal correctly refused an extension of time because the intended appeal could not succeed and the applicant failed to establish proper standing or a sufficient explanation for delay.
6 Aug 2014

VUKSICH and BORICH LTD v AUCKLAND COUNCIL [2014] NZHC 1846

Citation

[2014] NZHC 1846
Court

High Court

The court was satisfied on the material and submissions before it that the statutory test under ss 316 and 317 of the Property Law Act 2007 was met and therefore the covenant in Transfer B918535.1 should be extinguished in its entirety.