Green Land Investment Limited v G R International Limited

[2016] NZHC 213

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2187 [2016] NZHC 213

BETWEEN

GREEN LAND INVESTMENT

LIMITED Plaintiff

AND

G R INTERNATIONAL LIMITED First Defendant

LIANSEN MAO Second Defendant

TSAN FAI LO, CAN RONG LUO and

WEI ZHU ZENG Third Defendants

AUCKLAND COUNCIL Fourth Defendant

Continued …

Hearing:	On the papers
Appearances:	D K Wilson for plaintiff
Judgment:	18 February 2016

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on 18 February 2015 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

GREEN LAND INVESTMENT LIMITED v G R INTERNATIONAL LIMITED [2016] NZHC 213 [18 February 2016]

Continued …

IVAN FRISKEN ESTATES LIMITED Fifth Defendant

UMH GROUP LIMITED Sixth Defendant

TSUNG KUANG CHUEH and HUI- HSIANG KAO

Seventh Defendants

WILLIAM ROBERT BLAIR and DEBORAH ANN COATES Eighth Defendants

DZL INVESTMENT COMPANY LIMITED

Ninth Defendant

TOM KROON and ANTJE KROON Tenth Defendants

WANDA DEVELOPMENT LIMITED Eleventh Defendant

WEIHONG HE Twelfth Defendant

LI-CHIH HAN WANG, MEI HUAN HSU, I-FEN CHEN and CHIN-YI LIN Thirteenth Defendants

ER XIA CAO, ER SHENG CAO and JUN WU

Fourteenth Defendants

LEADING DEVELOPMENTS LIMITED Fifteenth Defendants

ESTUARY CHT LP Sixteenth Defendant

YING-TSUNG LIN and WEN-I LIN Seventeenth Defendants

MEI WO MICHAEL LAW and IN MAN MANDY LAW LEE

Eighteenth Defendants

[1]      This is a proceeding by way of statement of claim seeking orders pursuant to s 317 of the Property Law Act 2007 for the extinguishment of land covenants.

[2]      The plaintiff is the owner of four titles of land situated at 411, 425, 425A and

431 Ormiston Road, Auckland.   The plaintiff’s four titles are variously subject to three land covenants contained in transfers.   These are noted on the titles to the plaintiff’s land.   The three transfers are all dated 1  February 1973.   Generally, covenants prevent the dominant land being used for trading or for any purpose other than agricultural.   They also do not allow the keeping of pigs and poultry.   In addition, there are other restrictions as to improvements to the land.

[3]      The plaintiff is entitled to make application because it is a person bound by restrictive covenants.   Its titles are all servient tenements.   There are,  however, interlocking provisions and so in some instances the plaintiff’s titles are also dominant.

[4]      The defendants are the owners of land in the neighbourbood of the plaintiff’s land.  The defendants’ properties are in Flat Bush School Road, Murphy’s Road and Ormiston Road.   The titles of the plaintiff and the defendants are the titles which have been derived by subdivisions of the land, which was the original dominant tenement for the covenants in the three memoranda of transfer.

[5]      When the proceeding was first filed, the plaintiff sought directions as to service.   Two orders were made for service of all interested parties including registered proprietors, mortgagees, covenantors and the local Council.  In respect of three defendants, an application was made for substituted service which was granted for good reason by this Court.  Two of the defendants filed documents in opposition. The second defendant filed a notice of opposition in person dated 3 November 2015. The eleventh and fifteenth defendants also filed a statement of defence through counsel dated 10 November 2015.  Discussions subsequently took place between the plaintiff, the second defendant and counsel for the eleventh and fifteenth defendants.

[6]      On  28  January  2016,  the  second  defendant  filed  a  memorandum  of withdrawal of his notice of opposition.   Likewise, counsel for the eleventh and

fifteenth defendants filed a memorandum dated 9 February 2016 in which they agreed to withdraw the defence which had been filed.  Counsel for the eleventh and fifteenth defendants accepted that the matter could  then be resolved  by way of formal proof hearing.  There is therefore no opposition to this application from any of the defendants or anyone else having any interest in it.

[7]      Having carefully considered the application and supporting documentation, I am satisfied that the application should be granted.  The covenants have by change of circumstances become obsolete and ought to be removed from the servient titles. In particular, I note the following:

(a)      In 1973, at the time that the covenants were put in place, the land in the plan mentioned in the covenants had a rural zoning.  The general zoning of this land is now residential, but there are some areas of some titles which the Council has zoned for reserve.   The second defendant’s title is now partly reserve.

(b)The character of the neighbourhood is now residential.  The plaintiff is carrying out a residential subdivision of its land.  Other defendants are also subdividing their land.   The sixth defendant applied to this Court in CIV-2015-404-1993 for extinguishment of the same covenants, and its application was granted.

(c)      The covenants themselves provide in each case that none of the restrictions in the covenants shall continue to have any force or effect at any time after all the land in the plan has been zoned residential or otherwise  by  the  Manukau  City  Council  or  other  body  having authority in that behalf.  Auckland Council has the relevant authority, and has zoned virtually all of the land residential.

(d)As  already  noted,  the  plaintiff  seeks  to  carry  out  a  residential subdivision of its land.  As part of this development, some of the land after subdivision will form public road or reserve vested in Auckland Council.   Sections 238 and 239 of the Resource Management Act

1991 require that where land is so vested in a Council for a road or reserve it must be vested free of any encumbrances.

(e)      The covenants have become obsolete in that they relate to aspects of a neighbourhood which no longer exist.  If they continued in force they would impede the reasonable use of the burdened land.

(f)      The extinguishment will not substantially injure any person entitled to the benefit of them.

[8]      Accordingly, there will be an order pursuant to s 317 of the Property Law Act

2007 extinguishing land covenants 133278.1, 226707.2, and 226710.1 from the titles owned by the plaintiff being NA 6A/1024, NA 94A/791, NA 94A/792 and NA

106D/76 known by their street addresses as 441, 425, 425A and 431 Ormiston Road,

Auckland.

Woolford J

Solicitors:

Loo & Koo, Auckland
Mana Law, Auckland

Counsel:

D A Wood, Auckland