Jackson v Small - [2023] NZHC 343

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000864

[2023] NZHC 343

UNDER the Declaratory Judgments Act 1908 and Part 18 of the High Court Rules 2016

IN THE MATTER

of an application for a Declaratory Judgment

BETWEEN

SCOTT KERRY JACKSON and SARAH ANNE JACKSON

Plaintiffs

AND

GEOFFREY CLEMMENT SMALL and ARIA SMALL

First Defendants

BOMBAY INVESTMENTS LIMITED

Second Defendant

Hearing:
24 June 2021, 6-10 & December 2021

Supplementary memorandum from plaintiffs 13 December 2021

Appearances:

TJG Allan for the Plaintiffs

A E Simkiss for the Defendants

Judgment:

1 March 2023

JUDGMENT OF DUFFY J

This judgment was delivered by me on 1March 2023 at 4.00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors:
Grove Darlow & Partners, Auckland (Mr TJG Allan)
Minter Ellison Rudd Watts, Auckland (SCDA Gollin/A E Simkiss)

JACKSON v SMALL [2023] NZHC 343 [28 February 2023]

[1] The parties in this proceeding are neighbours in a rural subdivision of lifestyle blocks. There are registered restrictive covenants on the titles of all these blocks. The owners of some blocks thought an equestrian facilities building the first defendants had erected on their block was not compliant with the two restrictive covenants registered on the title of this land.

[2] The owners commenced this proceeding, which has resulted in protracted litigation with three hearings in this Court and one in the Court of Appeal. The plaintiffs were initially unsuccessful before Gordon J in this Court on all their claims.1 They appealed to the Court of Appeal and were partly successful insofar as that Court found Gordon J had misinterpreted the covenants.2 This issue was re-heard by Gordon J, who found the equine facilities building does not comply with the covenants.3 The Judge made orders directing the first defendants to take certain steps to achieve compliance.4 Those steps commenced but were not completed. Some plaintiffs discontinued their claims against the first defendants.

[3] However, one of their number (formerly the second plaintiffs Scott Kerry Jackson and Sarah Anne Jackson), have returned to this Court seeking a mandatory injunction to further enforce the terms of the covenants.5 The first defendants, Geoffrey Small and Aria Small, oppose this application.

[4] The second judgment of Gordon J and the orders made thereon have not been appealed. Accordingly, there is now no doubt that the present equestrian facilities building contravenes the covenants and the plaintiffs are entitled to have that rectified. The issue for me to determine is whether such rectification should be by a mandatory injunction that (a) requires the first defendants to de-construct the existing building to a point where it complies with the covenants; or (b) a wholesale removal of that building with the land on which it stands being re-instated to its former appearance.

1      Taylor v Small [2018] NZHC 2785.
2      Taylor v Small [2019] NZCA 152.
3      Taylor v Small [2020] NZHC 2023.
4      At [153]–[155]. Gordon J…

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 Jackson v Small

Details

AGLC: Jackson v Small [2023] NZHC 343
Case: [2023] NZHC 343
Decision Date: 1 March 2023

CaseChat Overview and Summary

The plaintiffs, Scott Kerry Jackson and Sarah Anne Jackson, sought an order to require the first defendants, Geoffrey Clemment Small and Aria Small, to either demolish their equestrian facilities building and reinstate the land to its former appearance, or modify the building to comply with restrictive covenants on the land. The first defendants opposed the application, arguing that the modifications proposed by their expert, Mr Strez, would suffice to bring the building into compliance with the covenants. The case involved a protracted litigation, which had already been the subject of two judgments by Gordon J and an appeal to the Court of Appeal. The High Court was required to determine whether the proposed modifications to the equestrian facilities building by the first defendants would comply with the restrictive covenants on the land. The Court had to consider the competing expert evidence on the compliance of the proposed designs with the covenants, and whether the modifications proposed by the first defendants would be sufficient. The Court found that the Strez design would be sufficient to bring the building into compliance with the covenants, and dismissed the plaintiffs' application for an order requiring demolition and reinstatement of the land. Instead, the Court ordered the first defendants to modify the equestrian facilities building in accordance with the Strez design, and to ensure the design of their dwelling house was compatible with the modified equestrian facilities building.

Orders