Doak v Rollander - [2016] NZHC 1741

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-1022 [2016] NZHC 1741

UNDER Part 18 of the High Court Rules 2008

IN THE MATTER

of the Declaratory Judgments Act 1908

BETWEEN

WILLIAM NEVILLE DOAK First Plaintiff

AND

CHILDRENʼS HEALTH CAMPS - THE NEW ZEALAND FOUNDATION FOR CHILD AND FAMILY HEALTH AND DEVELOPMENT KNOWN AS STAND CHILDRENʼS SERVICES

Second Plaintiff

AND

BRETT DAVIS ROLLANDER, KIRSTY- ANNE ROLLANDER AND VAREENA STEVENS AND JILL BURKE, RICHARD BURKE AND MONICA YOUNG

First Defendants

AND

PATRICIA KAY HUFF Second Defendant

AND

STEPHEN JOHN MACKLIN AND ADELE MARGARET MACKLIN Third Defendants

AND

ROBERT HAROLD WYLIE WAKELIN, JOANNE ISABELL WAKELIN AND BURROWES TRUSTEE SERVICES (2013) LIMITED

Fourth Defendants

AND

NEIL TREVOR TURNER, JEAN ELIZABETH TURNER AND KAPITI TRUST COMPANY LIMITED

Fifth Defendants

AND

CHRISTOPHER JOHN LAMAIN AND CAROL ANN LAMAIN

Sixth Defendants

DOAK & OR v ROLLANDER & ORS [2016] NZHC 1741 [29 July 2016]

ANDCAROL LILLIAN WEBSTER, STUART GORDON WEBSTER AND HERCUS KING TRUSTEES LIMITED
Seventh Defendants

Hearing: 14 July 2016

Counsel:

P S J Withnall and S P R Conway for Plaintiffs
J W Maasen/M W G Riordan for First, Third, Sixth and Seventh
Defendants
D G Randal and A E OʼConnor for Kapiti Coast District
Council

Judgment:

29 July 2016

JUDGMENT OF SIMON FRANCE J

Introduction

[1] The first plaintiff owns land in Paraparaumu (the site). The site is part of a large subdivision that was created in 2001. The site, as with most or all of the sections in the subdivision, is subject to a restrictive covenant concerning the use to which it may be put. The restrictive covenant in issue provides that buildings on the site may not be used for an industrial or commercial use.

[2] The second plaintiff wishes to purchase the site. Together the intending vendor and purchaser seek a declaration that the second plaintiff ’s intended use of the property as a home providing short term residential living for children who have had harmful experiences does not breach the covenant. The agreed issue is whether it would constitute “commercial use”.

[3] The defendants are the seven immediate neighbours. Of these, the fourth defendants have indicated they abide, and the second and fifth have taken no part. The other four defendants oppose.

[4] The same covenant affects 150 properties. The remaining 143 properties were served but none have taken a role other than the Kapiti Coast District Council which owns 11 of the properties. It abides the decision as it affects the interpretation of the covenant, but appears to preserve the position of the District Plan.

The second plaintiff and its intended use

[5] The second plaintiff (Stand) is a registered charity that provides services for needy children. Stand is the trading name for an entity formally known as “Children’s Health Camps – the New Zealand Foundation for Child and Family Health and Development”. This charitable trust was established by the Children’s Health Camps Board Dissolution Act 1999. The new name of Stand Children Services Te Maia…

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.

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Details

Case: [2016] NZHC 1741
Decision Date: 29 July 2016

CaseChat Overview and Summary

The case of Doak v Rollander was heard in the High Court of New Zealand, Wellington Registry. The first plaintiff, William Neville Doak, is the owner of a property in Paraparaumu, which is part of a large subdivision created in 2001. The property is subject to a restrictive covenant that prohibits buildings on the site from being used for an industrial or commercial use. The second plaintiff, Children’s Health Camps – The New Zealand Foundation for Child and Family Health and Development (known as Stand Children’s Services), wishes to purchase the property and use it to provide short-term residential living for children who have had harmful experiences. The defendants, who are the immediate neighbours of the property, oppose the intended use by the second plaintiff. The court was required to determine whether the intended use by the second plaintiff constitutes a "commercial use" as defined in the restrictive covenant. The court held that the intended use by the second plaintiff is not a commercial use as that term is usually understood. The primary purpose of the covenants is to control the initial development and to ensure housing of a particular look and value is established. The court rejected the proposition that the whole clause should be interpreted by reference to planning documents, stating that the term "commercial use" does not have an exact equivalent in the planning documents. The court found that the intended use by the second plaintiff is primarily to provide a temporary home for children in need, and there is nothing commercial about this use. The court granted the plaintiffs' request for a declaration that the intended use is not a commercial use for the purposes of the restrictive covenant. Costs were awarded to the plaintiffs jointly and severally by the first, third, sixth and seventh defendants. The Kapiti Coast District Council was not liable for costs and must carry its own. The judgment did not address the concurrent resource consent processes.

Orders