Gladstone Heights Limited

[2022] NZHC 1182

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2022-412-000041

[2022] NZHC 1182

UNDER	the Property Law Act 2007
IN THE MATTER	of an application by GLADSTONE HEIGHTS LIMITED

Hearing:	On the papers
Counsel:	T J Shiels QC for Applicant
Judgment:	26 May 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 26 May 2022 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Re Gladstone Heights Ltd [2022] NZHC 1182 [26 May 2021].

[1]                 The applicant intends to apply to the Court for an order under s 317 of the Property Law Act 2007 modifying or extinguishing a land covenant registered over a large property at Mosgiel that is being subdivided for residential purposes. The application that is before me seeks an order under pt 19 of the High Court Rules 2016 granting the applicant leave to commence its proceeding by originating application.

Background

[2]                 The facts are relatively straightforward and helpfully summarised in counsel’s memorandum, which I largely adopt.

[3]                 The applicant is carrying out a multi-stage subdivision of formerly rural land at Mosgiel in two residential sites, in accordance with a resource consent. The first stage of the consented subdivision was completed and most of the lots were sold. The applicant was left with a large balance lot (lot 100) which is to be subdivided in subsequent stages.

[4]                 Prior to the sale of the lots in stage 1, the applicant created a mutual covenant between all of the lots to restrict further subdivision and the use of those lots for more than one residence. The applicant did not appreciate that the covenant would also apply to lot 100.

[5]                 The applicant’s surveyor has now prepared a title plan for stage 2 of the subdivision which will lead to the vesting of roads in the Council. It has been pointed out to the applicant that LINZ cannot accept for deposit a plan that vests land as roading if there are other interests in the land. LINZ takes the view that the mutual covenant created at the time of stage 1 titles being issued gives all stage 1 lot owners an interest in the land to be vested as roading. For that reason the applicant seeks to have the covenant partially varied or extinguished to thereby remove what it considers is a technical barrier to the deposit of the stage 2 plan. In addition, the applicant has been advised that the stage 2 subdivision will, in a more general way, breach the covenant created when stage 1 titles were issued. The applicant wishes to address this at the same time.

[6]                 The applicant has attempted to approach all stage 1 lot owners requesting their consent to vary the covenant. Some stage 1 owners have indicated that they would consent, but others have not responded. The evidence is that no lot owner has voiced definite opposition to an application to the Court for the removal of the covenant.

The law

[7]                 A proceeding for relief under ss 316 and 317 of the Property Law Act 2007 is to be commenced as an ordinary proceeding. Under r 19.5 the Court may, in the interests of justice, allow a proceeding not mentioned in rr 19.2 – 19.4 to be commenced by originating application under pt 19. The proceeding the applicant proposes to bring is not one mentioned in rr 19.2 and 19.4 and requires leave to proceed under pt 19. The Court’s permission may be sought without notice.

[8]                 The principles to be applied on such an application were considered by me in LMM Investments (2012) Ltd v Cumming,1 which is a case on not dissimilar facts to the present. I take the same approach to this application.

[9]                 I am satisfied it is appropriate to grant leave to bring this proceeding by way of originating application because, in my assessment on what is before me, that is the method by which it can be determined most promptly, inexpensively and efficiently. In this regard I note:

(a)The relevant authorities recognise that the pt 19 procedure may be appropriate for such cases.

(b)The proceeding concerns the application of statutory provisions.

(c)The issue appears to be narrow and well-defined.

(d)There is no need for particularised pleadings, nor can I imagine there will be significant interlocutory applications or close case management required.

1      LMM Investments (2012) Ltd v Cumming [2021] 22 NZCPR 584 and [2021] NZHC 2639.

(e)It appears unlikely there will be any significant disputes of fact upon which the application will turn.

Result

[10]              I grant leave to the applicant to commence the proceeding under pt 19 of the High Court Rules 2016 originating application procedure.

[11]              I direct that when the application is filed the applicant is to apply for directions as to service.

[12]There shall be no order as to costs.

O G Paulsen Associate Judge

Solicitors:

Joynt Andrews Solicitors, Christchurch