New Zealand Case Law: Decisions & Judgments

Topic

Memorandum of encumbrance

Legal area

Court

5 Mar 2019

HORTON v TE PURU MANAGEMENT COMPANY LIMITED [2019] NZHC 339

Citation

[2019] NZHC 339
Court

High Court

The Deed of Covenant, read as a whole and in light of its commercial purpose and the incorporated management plan and consents, does not treat Schedule C as an exhaustive list; manager and building levies may include costs not specifically listed in Schedule C; the manager must provide unredacted yearly accounts, an annual report and reconciliations; levies may carry forward losses or surpluses but the covenant does not permit the manager to retain an additional margin/profit on expenses; offering rebates to some lot owners to reflect prior payments is permissible; 'permanent' residence is as…
19 Aug 2014

SHAW v MACALISTER TODD PHILLIPS [2014] NZHC 1948

Citation

[2014] NZHC 1948
Court

High Court

The 2001 transaction was a flawed/damaged asset because the plaintiffs received a less enforceable contractual licence when they should have been advised to secure a memorandum of encumbrance; that inherent defect constituted actual damage in 2001 and the six-year limitation period ran from that date, so the May 2014 proceeding was statute-barred; summary judgment entered for defendant.
13 Jun 2012

BODY CORPORATE 341188 V DISTRICT COURT AT AUCKLAND HC AK CIV-2012-404-2931

Citation

openlaw-bc8faf85_18f4_4f29_8aea_c433102a8779.pdf
Court

High Court

There was a serious question to be tried on both the judicial review and interpretation of the land covenant; the balance of convenience and overall justice favored interim relief preserving the pre‑District Court status quo of longstanding parking use by applicants; respondents' refusal to give undertakings and active operation of Lot 4 as a paid carpark increased risk of injustice to applicants, therefore interim orders were granted to restrain respondents from denying access and creating adverse interests pending full hearing.
10 Aug 2011

CAMBRAY NORTH ISLAND LIMITED & ANOR V THE MINISTER FOR LAND INFORMATION HC AK CIV 2011-404-000513

Citation

openlaw-6dda31bb_643e_4d4e_a799_fec291320787.pdf
Court

High Court

The easement and encumbrance are properly susceptible to extinguishment under s317 given the changed circumstances (alternative access via Lot 52); s317(2) permits but does not mandate compensation and is silent on methodology; the respondent is entitled to recover identifiable out-of-pocket costs directly arising from extinguishment (vehicle crossing $5,600 and services relocation $31,700 totalling $37,300 exclusive of GST); the respondent's valuation of $230,000 was rejected as flawed because it ignored the respondent's contractual ability to require surrender and equated compensation with…
6 May 2010

JANICE MARY MENERE AND ORS V JACKSON MEWS MANAGEMENT LIMITED HC WN CIV 2008-485-562

Citation

openlaw-49eb3e99_464e_48df_ab7a_35c3d4947f47.pdf
Court

High Court

Costs were awarded to the defendant because the defendant's position was vindicated on appeal and the plaintiffs structured the litigation; inspection costs were reduced from a 2B allocation to a 2A allocation given the limited number of documents, resulting in a costs award of $11,840 and total costs and disbursements of $11,930.
27 Nov 2009

JACKSON MEWS MANAGEMENT LTD V MENERE & ORS CA CA690/2008

Citation

openlaw-9cfb24c7_8d03_41d6_b522_16b07da092f6.pdf
Court

Court of Appeal

Section 97(2) of the Property Law Act 2007 requires that discharge of a mortgage/encumbrance follows payment of all amounts and performance of all other obligations secured by it; where a rentcharge encumbrance secures ongoing services and levies, a nominal payment of the rent does not entitle the encumbrancer to redemption and discharge.

New Zealand Case Law

HORTON v TE PURU MANAGEMENT COMPANY LIMITED [2019] NZHC 339

SHAW v MACALISTER TODD PHILLIPS [2014] NZHC 1948

BODY CORPORATE 341188 V DISTRICT COURT AT AUCKLAND HC AK CIV-2012-404-2931

CAMBRAY NORTH ISLAND LIMITED & ANOR V THE MINISTER FOR LAND INFORMATION HC AK CIV 2011-404-000513

JANICE MARY MENERE AND ORS V JACKSON MEWS MANAGEMENT LIMITED HC WN CIV 2008-485-562

JACKSON MEWS MANAGEMENT LTD V MENERE & ORS CA CA690/2008