New Zealand Case Law: Decisions & Judgments

Topic

Section 317 property law act

Legal area

Court

13 Oct 2023

FAIRVIEW ESTATE INVESTMENT LTD [2023] NZHC 2874

Citation

[2023] NZHC 2874
Court

High Court

The Court granted extinguishment of the covenant as to the two Reserve Lots under s 317(1)(d) because the benefit of the covenant remains on the residential lots, the Council is unlikely to be prejudiced in its role as local authority, affected benefited owners had opportunity to respond and did not oppose (one consented), and the extinguishment will not substantially injure any person entitled.
2 Dec 2022

RE G W WILFIELD LTD [2022] NZHC 3212

Citation

[2022] NZHC 3212
Court

High Court

Given the material change in use of the benefited/burdened land and the neighbourhood, the lack of evidence of substantial injury to persons entitled, the necessity of extinguishment to allow vesting of road and reserve and progression of subdivision, and the Council's lack of objection, it is just and equitable to extinguish the covenant insofar as it affects land to be vested as road or reserve under s 317 Property Law Act 2007.
2 Sept 2022

GOM PROPERTIES NZ LTD v PEZIC [2022] NZHC 2234

Citation

[2022] NZHC 2234
Court

High Court

Because the first respondent's refusal to sign consent was unreasonable in the absence of any suggestion the modification would adversely affect his easement rights and that refusal directly necessitated the proceeding, the Court exercised its discretion to award costs to the applicant on a Category 2B basis for commencement and up to the first call; an uplift was not justified.
27 May 2022

CASHMERE DOWNS COMPANY LIMITED v CASHMERE DOWNS COMPANY LIMITED [2022] NZHC 1199

Citation

[2022] NZHC 1199
Court

High Court

The Court granted modification under s 317 PLA because there had been a relevant change in circumstances since the covenants' creation (oversight registering covenants against land required for vesting as road, issuance of new titles and progress of subdivision with sections sold) such that the covenants impede the practical vesting of road/reserve land; there was no opposition and the modification will not substantially injure any person entitled; the Registrar‑General's 2020 ruling was clarificatory and not by itself the change relied on, but overall threshold of s 317(1)(a)(iii) was met.

New Zealand Case Law

FAIRVIEW ESTATE INVESTMENT LTD [2023] NZHC 2874

RE G W WILFIELD LTD [2022] NZHC 3212

GOM PROPERTIES NZ LTD v PEZIC [2022] NZHC 2234

CASHMERE DOWNS COMPANY LIMITED v CASHMERE DOWNS COMPANY LIMITED [2022] NZHC 1199