New Zealand Case Law: Decisions & Judgments

Topic

Open space covenant

Legal area

Court

10 Jul 2019

KAIMAI PROPERTIES LTD v QUEEN ELIZABETH THE SECOND NATIONAL TRUST [2019] NZHC 1591

Citation

[2019] NZHC 1591
Court

High Court

Clause 4.1 requires the owner to inform and consult the Trust if a third party notifies an intention to carry out works but does not grant the owner power to consent to works that the covenant expressly prohibits; consequently the interpretation claim fails and rectification was not available because there was no objectively ascertainable common continuing intention to permit quarry expansion into the covenanted areas nor evidence the Trust knew of any unilateral mistake; however the Court made consent declarations and directed a re‑survey to correct a plotting error in the northern boundary…
17 Aug 2018

GREEN GROWTH NO. 2 LIMITED v QUEEN ELIZABETH THE SECOND NATIONAL TRUST [2018] NZSC 75

Citation

[2018] NZSC 75
Court

Supreme Court

The Court held the open space covenant as notified is an effective, binding registered interest under s22(6) QEII Act and the Land Transfer Act; rectification ordered below was set aside because rectification is not available to alter a registered interest against a successor in title who took with notice in circumstances where the registered interest is within the protection of the LTA; the correct construction (by majority) is that references to 'protected area' in clauses 2 and 7 operate to protect the whole block subject only to the exception in the third schedule, and any misleading draf…
17 Dec 2014

QUEEN ELIZABETH THE SECOND NATIONAL TRUST v GREEN GROWTH NO 2 LIMITED [2014] NZHC 3275

Citation

(2014) 15 NZCPR 785
Court

High Court

QEII Act open space covenants, once notified on title, are interests in land and attract the protection of indefeasibility under Land Transfer Act s62; the covenant before the Court contained a common, continuing intention between the Trust and the original covenantor that was defeated by a drafting/clerical mistake and therefore should be rectified to reflect that intention; rectification is available against a successor in title who had actual notice of the covenant and of the defect; the defendant's counterclaims challenging the covenant are largely precluded by indefeasibility and the wro…
17 Nov 2014

QUEEN ELIZABETH THE SECOND NATIONAL TRUST v GREEN GROWTH NO. 2 LTD [2014] NZHC 2860

Citation

[2014] NZHC 2860
Court

High Court

Leave to amend the counterclaim was granted only to delete the capacity cause of action and to plead rectification; leave to plead fraud under s81 Land Transfer Act 1952 was refused because there was no clear evidence of fraud, the application was very late, and alleging fraud was unnecessary because wrongful registration under s81 would suffice.
7 Feb 2013

QUEEN ELIZABETH THE SECOND NATIONAL TRUST V GREEN GROWTH NO.2 LIMITED HC AK CIV-2012-404-004592

Citation

openlaw-cdac0b6b_8ac4_4da8_a646_f65eb9eef1b0.pdf
Court

High Court

On summary judgment the Court held the covenant could not be construed to apply the detailed second-schedule restrictions to the whole title because the undefined 'protected area' rendered the intended wider restriction uncertain and the plaintiff failed to prove, on admissible evidence, the common intention necessary for rectification; however the registered covenant is an interest in land under s22(6) QEII Act and attracts indefeasibility under s62 Land Transfer Act, and the defendant's counterclaim to remove the covenant failed because it did not establish actual fraud or other recognised…

New Zealand Case Law

KAIMAI PROPERTIES LTD v QUEEN ELIZABETH THE SECOND NATIONAL TRUST [2019] NZHC 1591

GREEN GROWTH NO. 2 LIMITED v QUEEN ELIZABETH THE SECOND NATIONAL TRUST [2018] NZSC 75

QUEEN ELIZABETH THE SECOND NATIONAL TRUST v GREEN GROWTH NO 2 LIMITED [2014] NZHC 3275

QUEEN ELIZABETH THE SECOND NATIONAL TRUST v GREEN GROWTH NO. 2 LTD [2014] NZHC 2860

QUEEN ELIZABETH THE SECOND NATIONAL TRUST V GREEN GROWTH NO.2 LIMITED HC AK CIV-2012-404-004592