IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2021-454-23
[2022] NZHC 1751
BETWEEN JOSHUA HURLIMANN
Plaintiff
AND
PAUL LILLEY AND MELANIE LILLEY
Defendants
Hearing: 4 July 2022 (via AVL) Appearances:
M Freeman for Plaintiff
D Shepherd for Defendants
Judgment:
20 July 2022
JUDGMENT OF ISAC J
Introduction
[1] Mr Hürlimann wanted to buy a lifestyle section so he could build a home. Mr and Mrs Lilley wanted to subdivide their seven-hectare rural property into four lots so they could sell three of them. These propitious circumstances culminated in an agreement for sale and purchase between the parties relating to a section that was yet to be created.
[2] The agreement contained a provision dealing with the imposition of restrictive covenants. Mr Hürlimann considers the provision prevented Mr and Mrs Lilley from requiring covenants of any kind. Despite this, he agreed they could register a suite of them over the land he was to acquire. He then proceeded to settle the purchase and acquired his title subject to those covenants.
HURLIMANN v LILLEY [2022] NZHC 1751 [20 July 2022]
[3] In this proceeding Mr Hürlimann now says the Lilleys breached the agreement by insisting on the covenants. He says their imposition amounted to a variation of the sale agreement that was unsupported by consideration because his consent was the product of illegitimate pressure. He seeks their removal from the title both under the law of contract and in terms of the Court’s jurisdiction to remove covenants under s 317 of the Property Law Act 2007.
[4] The primary issue I need to determine is the effect of cl 23 of the agreement for sale and purchase. It governed the imposition of restrictive covenants and the rights of the parties in relation to them.
The evidence and my findings
Scope of the evidence and my approach to factual findings
[5] The trial occupied one day. The evidence consisted of a largely contemporaneous documentary record of communications between the parties’ solicitors as well as oral evidence from Mr Hürlimann, his solicitor at the time, Mr Matsis, and Mr Lilley.
[6]My findings of fact are drawn almost entirely from the documentary record.
[7] The areas of conflict between the witnesses were limited. The first area— relating to pre-contractual negotiations—is not relevant to the issues I have to determine. Mr Hürlimann has not brought a claim for misrepresentation or rectification, and the oral evidence does not establish a common pre-contractual understanding of the intended effect of cl 23.1
[8] The second area of conflict—relating to Mr and Mrs Lilley’s true motivations for requiring the restrictive covenants—involved a challenge to Mr Lilley’s credibility. As I record later in this judgment, I am not satisfied there is a safe basis on which to conclude that Mr Lilley was not truthful when giving his evidence so, again, I have not found the viva-voce evidence helpful.
1 I use the expression “oral evidence” to refer to both the…
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- Hurlimann v Lilley [2022] NZHC 1751
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- [2022] NZHC 1751
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