Bealey Developments Limited v Mikaera - [2025] NZHC 129

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-171

[2025] NZHC 129

BETWEEN
BEALEY DEVELOPMENTS LIMITED

Applicant

AND

AADEN PETERA JAMES MIKAERA AND MADELINE JESSIE EWAN

First Respondents

AND

OTHER RESPONDENTS

Continued over

Hearing: On the papers

Appearances:

J K Holt for Applicant

Judgment:

12 February 2025

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 12 February 2025 at 10.15 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BEALEY DEVELOPMENTS LIMITED v MIKAERA [2025] NZHC 129 [12 February 2025]

ABBEY KATHARINE MORATTI COLGATE AND JOSEPH FRANCIS GRADWELL
Second Respondents

ADAM GORDON GRAY AND RACHEL ANNE ROMANS
Third Respondents

ADRIAN JOHN COWIE
Fourth Respondent

AIMEE JAYNE BRADSHAW AND DYLAN SHANE GULLIVER
Fifth Respondents

AIMEE LOUISE BAILES AND GARETH RICHARD BAILES
Sixth Respondents

ALANA POLLOCK AND DAVID ANTHONY POLLOCK
Seventh Respondents

ALASDAIR RUARY COURTEN AND KIM GABRIELLE COURTEN
Eighth Respondents

ALEXANDER TOMAS GISLASON AND JACQUETTA ERINN TANGPANITHAN THONGSKUL
Ninth Respondents

ALICE ELIZABETH BROWN AND NATHAN BROWN
Tenth Respondents

ALISTAIR JOHN FERGUSON AND LINDA JEAN BOWIE
11th Respondents

AMY JANE JONES AND BLAIR STUART JONES
12th Respondents

ANDRE SCHOLTZ AND CHRISTELLE SCHOLTZ
13th Respondents

ANDREW DAVIDSON IRVINE
14th Respondent

ANNA MARIE BATESON AND PAUL IAN BATESON
15th Respondents

ANNA MARY MAHUIKA AND KEVIN JAMES MAHUIKA
16th Respondents

ANTHONY CHARLES CRAIG AND JENNIFER ROSE MULLER
17th Respondents

ARNO BENJAMIN VAN EEDEN AND NATASHA LESLEY FRASER
18th Respondents

AYLA JOY BROOKS AND JOSHUA PERCY BROOKS
19th Respondents

BARRY ANTHONY TOWES AND SHARON ELIZABETH TOWES
20th Respondents

BENJAMIN LLOYD SIMPSON AND GEORGIA AIMEE SHERLOCK
21st Respondents

BESPOKE INVESTMENTS 2019 LIMITED
22nd Respondent

BEVAN HEDLEY ROBINSON, BEVERLEY PHYLLIS ROBINSON, HILARY MAREE ROBINSON AND PAUL HEDLEY ROBINSON
23rd Respondents

BJORN CHRISTIAN DUNLOP AND SOPHIE JEAN DUNLOP
24th Respondents

BLAIR IAN RUTHERFURD AND LAURA JANE RUTHERFURD
25th Respondents

BRADLEY JAMES TAYLOR AND DANIELLE LEANA TAYLOR
26th Respondents

BRUCE GRAHAM HANSEN AND JOHANA JANE DIAO VILLAESTER
27th Respondents

CAMERON NEWMAN LIMITED
28th Respondent

CHATHURANI PERERA MADDUMARACHCHI AND DON NIHAL MADDUMARACHCHI
29th Respondents

CLAIRE LOUISE LANCASTER AND MATHEW JAMES SMITH
30th Respondents

CLAIRE MARIE WELLS AND JEFFREY NORMAN WELLS
31st Respondents

COLIN DAVID BENNETT AND KAYE CECILA BENNETT
32nd Respondents

CREIGHTON GREGORY DAWSON
33rd Respondent

DANA ANNABEL MULVANY, STANLEY MICHAEL NICHOLAS MULVANY AND MULVANY TRUSTEES LIMITED
34th Respondents

DARRYL LESLIE GALLAGHER AND LEAH JANE MUNRO
35th Respondents

DAVID JOHN GALBRAITH AND KYLIE MARIE GALBRAITH
36th Respondents

DENISE HORIANA WAIRITI MUNRO KAHUKURA AND SILEAUVAA BAINEY AFA
37th Respondents

DOUGLAS LLOYD GREEN AND KERIANA JUNE GREEN
38th Respondents

ELIZABETH BEDSER AND VAUGHN LESLIE BEDSER
39th Respondents

EMMA RACHAEL HEWAT AND MATTHEW MICHAEL JOHN HEWAT
40th Respondents

GABRIELLE THERESA SHERWOOD WHALL AND GRADY MACLEOD NUNN
41st Respondents

GAGAN DEEP, KYRIE-LEE JEAN BOYES AND MADHAV BHASKAR
42nd Respondents

GARY WILLIAM WAREHAM AND KAREN WAREHAM
43rd Respondents

GAYLENE ELIZABETH WEIR AND GORDON JAMES WEIR
44th Respondents

GEMMA ANNE BALDOCK AND NEIL BAXTER
45th Respondents

G J CARLYON DEVELOPMENTS LIMITED
46th Respondents

GREGORY DONALD PROUDFOOT, MICHELLE KATHLEEN PROUDFOOT, AND JOHN…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bealey Developments Limited v Mikaera

Details

AGLC: Bealey Developments Limited v Mikaera [2025] NZHC 129
Case: [2025] NZHC 129
Decision Date: 12 February 2025

CaseChat Overview and Summary

Bealey Developments Limited applied to the High Court of New Zealand, Christchurch Registry, to extinguish a restrictive covenant registered over its land and the land of surrounding landowners. The covenant, registered on 7 September 2018, was intended to ensure that a developer, Kirwee Central Properties Ltd, and subsequent purchasers would not interfere with Bealey's farming operations on its remaining land. Bealey now seeks to extinguish the covenant as it no longer needs the protection it provides and the obligation to keep the land as grassland pasture has become impractical. The court was required to decide whether the covenant could be extinguished under the Property Law Act 2007 (PLA).

The court considered whether any of the grounds for extinguishment in ss 317(1)(a), (b), (c), (d) and (f) of the PLA were met. The applicant relied on the grounds in ss 317(1)(c) and (d), although also submitting that the grounds in ss 317(1)(a), (b) and (f) were met. The court found that all the grounds were made out. The respondents had not opposed the application, the restriction to keep the land as grassland was set to expire in July 2027, and the extinguishment would not substantially injure any person entitled. The change in the use of the land, with re-zoning for more intensive residential development, further supported the application.

The court reasoned that, given the changed circumstances, it was just and equitable to extinguish the covenant. The primary beneficiary, Bealey, wanted the covenant removed and the extinguishment would not substantially injure any respondent. The court accepted that Bealey would suffer substantial injury if the covenant was not removed, as it would prevent the settlement of its sale to NTP Development Holdings Ltd. The court made orders extinguishing the covenant over the specified land and removing it from the relevant records of title, with no compensation payable to the respondents.

Orders