New Zealand Case Law: Decisions & Judgments

Topic

Restrictive covenant interpretation

Legal area

Court

13 May 2019

TAYLOR v SMALL [2019] NZCA 152

Citation

[2019] NZCA 152
Court

Court of Appeal

"Single" in the covenant describes the nature, design or style of a dwelling (i.e. not multi-unit) and does not impose a numeric limit on the number of houses that may be built on the Smalls' subdivided lots; the High Court erred in its assessment of whether the equestrian building was usual and reasonable for the subdivision and that factual issue must be remitted for rehearing; estoppel defences failed on the facts
17 Jan 2019

JOHNS and JOHNS v WU and CHENG [2019] NZHC 12

Citation

[2019] NZHC 12
Court

High Court

The court held that the covenant remains enforceable in respect of design and materials but is not enforceable as to the minimum build cost in sub-clause (c)(ii) because the Modal Housing Cost Index was discontinued and there is no single, reliable, objectively ascertainable substitute mechanism of general application; additionally the minimum build cost requirement does not apply to a secondary/minor dwelling (it was intended to secure at least one principal dwelling meeting the minimum), and on the facts the Council acted appropriately and no negligence or loss to plaintiffs was established…
29 Sept 2016

DOAK & ORS v ROLLANDER & ORS [2016] NZHC 2319

Citation

[2016] NZHC 2319
Court

High Court

The Court applied the normal rule that costs follow the event in declaratory proceedings because the matter was adversarial and contested, the sale agreement did not justify departure from ordinary costs principles, procedural steps such as interrogatories were defendants' tactical choices, and an appeal alone did not justify a stay; accordingly plaintiffs were awarded costs on a 2B scale against the first, third, sixth and seventh defendants jointly and severally and the application to stay the costs award was refused.
29 Jul 2016

DOAK & OR v ROLLANDER & ORS [2016] NZHC 1741

Citation

[2016] NZHC 1741
Court

High Court

The court held the second plaintiff's proposed use is not a 'commercial use' within clause 7 when that term is given its ordinary meaning informed by context; clause 7 should be read by ordinary meaning first and the District Plan only engaged if the use is established as commercial; incidental office/administration does not render the overall use commercial; declaratory relief granted to the plaintiffs.
2 Jul 2012

WHITTAKER v JERICEVICH HC NAP CIV-2012-441-000186

Citation

openlaw-8a41f54c_5d38_4af3_bc13_ef2f4f0c887b.pdf
Court

High Court

The covenant restricts the form and character of permitted structures to a single storey residential dwelling (and up to two accessory buildings) but does not, on its wording and context, impose an implied prohibition on operating a bed and breakfast within a dwelling so long as the use does not deprive the building of its essential residential character; therefore the bed and breakfast operation was not prohibited and the appeal is dismissed.
8 Aug 2011

FISHER V PHILLIPS AND SARDINERO TRUSTEES LIMITED HC CHCH CIV-2010-409-001985

Citation

openlaw-62502778_ea36_4058_a4dc_e17ebc77f9c6.pdf
Court

High Court

The Court found there is a serious issue to be tried as to whether the amended proposal complies with the restrictive covenant (minimum 140 sqm dwelling and permitted materials) and that the balance of convenience favoured protecting the plaintiffs' aesthetic interests while permitting development subject to conditions; accordingly the interim injunction was amended to allow construction under the new plans subject to specified material requirements and an undertaking to remove any non‑compliant structure within a limited period after final judgment, with case management directions for an exp…
8 Jun 2007

THOMPSON V BATTERSBY & ANOR HC AK CIV-2007-404-676

Citation

openlaw-9de958ef_86dc_4d92_b25e_c7de8bfbf062.pdf
Court

High Court

Clause 4(a) of the covenant prohibits 'buildings' understood in ordinary meaning as structures of the nature of a house or having a roof; it does not prohibit all 'structures'; applying the factual matrix (Tonkin & Taylor reports) and the plain wording, the proposed deck and privacy wall are structures but not buildings and therefore do not breach clause 4(a); judgment for defendant.

New Zealand Case Law

TAYLOR v SMALL [2019] NZCA 152

JOHNS and JOHNS v WU and CHENG [2019] NZHC 12

DOAK & ORS v ROLLANDER & ORS [2016] NZHC 2319

DOAK & OR v ROLLANDER & ORS [2016] NZHC 1741

WHITTAKER v JERICEVICH HC NAP CIV-2012-441-000186

FISHER V PHILLIPS AND SARDINERO TRUSTEES LIMITED HC CHCH CIV-2010-409-001985

THOMPSON V BATTERSBY & ANOR HC AK CIV-2007-404-676