New Zealand Case Law: Decisions & Judgments

Topic

Restrictive covenant

Legal area

Court

10 Nov 2023

WATENE LANE LTD v TAURANGA CITY COUNCIL & ORS [2023] NZHC 3174

Citation

[2023] NZHC 3174
Court

High Court

Section 316 confers a broad discretion as to service and who may be heard; proximity and neighbourhood relevance under s317 mean an adjoining owner without a registered benefit may nonetheless be heard as an interested party. Accordingly the applicant's challenge to Ms Waller's standing is dismissed and she is entitled to be heard as an interested party; the question of whether a building scheme exists remains for the substantive hearing.
31 May 2023

AUCKLAND COUNCIL v SAMSON CORPORATION LTD [2023] NZHC 1351

Citation

[2023] NZHC 1351
Court

High Court

The High Court concluded the Tribunal's large percentage benchmarking (reliance on Waterview as a binding template) was inappropriate; compensation must be grounded in HABU, credible market evidence and site-specific engineering assessment of covenant impacts. The Court substituted the Tribunal awards: Samson total compensation reduced to NZD 83,000 and YMCA total compensation reduced to NZD 858,400 (both inclusive of quantified acquisition and injurious affection components) and rejected claimed betterment on the evidence.
13 Jul 2021

X-RAY TRUST LTD v MILLBROOK COUNTRY CLUB LTD [2021] NZHC 1749

Citation

[2021] NZHC 1749
Court

High Court

Refusal of interim injunction because there was a serious question to be tried but the balance of convenience clearly favoured the defendant: likely amenity loss to plaintiff was slight and compensable, whereas halting construction would cause significant, difficult-to-quantify and irreparable prejudice to defendant’s ability to complete the golf-course project on schedule.
28 Feb 2020

FOX MORTIMER TRUSTEE CO LTD v MGH TRAH LTD [2020] NZHC 321

Citation

[2020] NZHC 321
Court

High Court

Clause 21, read in its factual context and against the confirmed subdivision plan and prior representations, is a restrictive covenant: it permits only one dwelling on Lot 1, that dwelling must be single level and located within the 400m2 building platform marked X and positioned to minimise impairment of Lot 2's view; defendants had represented they could not subdivide Lot 1 and the covenant was intended to run with the land; accordingly plaintiff is entitled to a declaration, to sustain the caveat and to permanent injunctive relief restraining works inconsistent with the covenant; defendant…
23 Mar 2018

NELSON LAKES HOLDINGS LIMITED v SEIFRIED [2018] NZHC 521

Citation

[2018] NZHC 521
Court

High Court

The easement was extinguished because the restrictive covenant was inconsistent with the property's long-standing commercial zoning, the land had been used commercially with council consent and without enforcement or objection, the Council did not oppose removal, and no person entitled would be substantially injured by extinguishment under s317 PLA 2007.
17 Nov 2017

JOHNS v WU [2017] NZHC 2831

Citation

[2017] NZHC 2831
Court

High Court

Summary judgment and striking out were refused because there are serious and triable questions as to the plaintiffs' standing, the proper construction of the covenant (including the meaning of 'heretofore' and whether the covenant applies to subsequent dwellings), whether vendor approval was obtained prior to commencement and whether the minimum cost threshold is met; factual and legal disputes preclude disposal without a full hearing.
8 Sept 2017

WEBSTER& ORS v DOAK [2017] NZCA 396

Citation

[2017] NZCA 396
Court

Court of Appeal

The phrase 'commercial or industrial use' in the restrictive covenant is to be given its ordinary (non‑specialist) meaning (commerce for profit); Stand's proposed Children's Village is not a commercial use in that ordinary sense, so the covenant does not prohibit the proposed use; reference to District Plan definitions was unnecessary and would not change the outcome.
11 Aug 2017

R B MCCLURE, J W MCCLURE AND HOLLAND BECKETT TRUSTEE NO.8 LTD AS TRUSTEES OF THE RAJANASAC TRUST v R L COBB AND M Z COBB [2017] NZHC 1911

Citation

[2017] NZHC 1911
Court

High Court

The caveat was dismissed because the applicants failed to demonstrate a reasonably arguable caveatable interest arising from clause 2; the proper remedy to protect the easement rights is registration of the agreed easement instrument and not sustaining a caveat; rectification claims are distinct and must be pursued separately; accordingly the Court ordered registration of the easement and dismissed the caveat application.
10 Oct 2016

BODY CORPORATE 162791 v GILBERT [2016] NZHC 2404

Citation

[2016] NZHC 2404
Court

High Court

The covenant must be read with the Unit Titles statutory framework: a 'Redevelopment' under the covenant means redevelopment into further units within the meaning of the Unit Titles legislation; the covenant does not itself imply a requirement to pay compensation for common property taken; the covenant is silent on whether redevelopment rights are single or successive and does not exhaust rights upon deposit of a redevelopment plan (extinguishment/modification depends on statutory procedures); redevelopment affecting levels below level three is permitted only if ancillary to redevelopment of…
3 Dec 2015

LAKES INTERNATIONAL GOLF MANAGEMENT LIMITED v VINCENT [2015] NZHC 3040

Citation

[2015] NZHC 3040
Court

High Court

The covenant's clause 9 definition of "golf club" refers to the incorporated entity; that entity is Lakes International Golf Management Ltd, therefore declaratory relief that it is the "golf club" and that Vincent must join it is appropriate; costs are awarded on a 2B basis with disbursements to be fixed by the Registrar and not reduced despite the relatively low monetary value because the defendant chose to litigate and appeal.