Johns Road Horticultural Limited v Gavin - [2022] NZHC 1747

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000346

[2022] NZHC 1747

UNDER THE Sections 316 and 317 of the Property Law Act 2007

IN THE MATTER

of an application for modification of a Land Covenant

BETWEEN

JOHNS ROAD HORTICULTURAL LIMITED

First Applicant

AND

STUART JOHN VINCENT FOX and SUSAN JOY FOX

Second Applicants

AND

DEREK JOHN CRAZE and

ROBERT AVERILL FITZHARDINGE KINGSCOTE

Third Applicants

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Hearing: On the papers

Counsel:

S D Munro and A L Davidson for the First Applicant C J Egden and E Flaszynski for the Second Applicants

S Caradus and E Tomblin for the Third and Fourth Applicants J Moss for the First and Second Respondents

Judgment:

20 July 2022

JUDGMENT OF NATION J

JOHNS ROAD HORTICULTURAL LTD v GAVIN [2022] NZHC 1747 [20 July 2022]

AND
ANITA TEOFILA BATEMAN, STEPHEN NOEL BATEMAN and RONALD DAVID WILLIAMS

Fourth Applicants

AND

CHARLOTTE TERESA GAVIN

First Respondent

AND

INVESTMENT SOUTHLAND LIMITED

Second Respondent

AND

JOHN and LYNDA POWELL

Third Respondents

AND

DEVONDALE NURSERIES LIMITED

Fourth Respondent

AND

JURGEN SUPPAN

Party directed to be served

[1] The first to fourth applicants (the applicants) own land in a subdivision adjoining Johns Road on the northern outskirts of Christchurch city. They seek orders modifying a covenant over their land. Notices of opposition were filed as to the original application by the first and second respondents (collectively referred to as “the Gavins”) and the third and fourth respondents (collectively referred to as “the Powells”).

[2] The applicants also sought leave, under r 19.5 of the High Court Rules 2016, to bring these proceedings by way of originating application. That application has not been opposed.

[3] Agreement has been reached between the applicants and the Gavins as to how the relevant covenant should be modified. The Powells did not wish to be heard further as to their original objection.

[4] A hearing of the proceedings had been scheduled for 18 May 2022. On being advised of the position taken by the Powells and the agreement reached between the

applicants and the Gavins, I agreed to deal with the application based on the affidavits and written submissions already filed. Later, I asked counsel to file memoranda as to two issues. They have done so. I refer to those memoranda in this judgment.

Background

[5] The land affected by the covenant was part of a subdivision undertaken in about 1988 by Devondale Estates Ltd, a company associated with the Powells.

[6] The applicants each own properties which are subject to the covenant. Their land adjoins Lot 20. With other adjoining landowners, they own a share in Lot 20. The Gavins and the Powells also own land adjoining Lot 20 and shares in Lot 20.

[7] A number of the landowners who have a share in Lot 20 own properties within a gated community known as the Devondale Estate. They have access to their properties from Lot 20. These people refer to Lot 20…

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: [2022] NZHC 1747
Decision Date: 20 July 2022

CaseChat Overview and Summary

The first to fourth applicants (the applicants) own land in a subdivision adjoining Johns Road on the northern outskirts of Christchurch city. They seek orders modifying a covenant over their land. Notices of opposition were filed as to the original application by the first and second respondents (collectively referred to as “the Gavins”) and the third and fourth respondents (collectively referred to as “the Powells”). Agreement has been reached between the applicants and the Gavins as to how the relevant covenant should be modified. The Powells did not wish to be heard further as to their original objection. The applicants sought modification of the covenant so that their land would not be subject to the covenant. They sought the modification on the grounds that the covenant was registered to maintain the overall aesthetic of a rural residential subdivision in proximity to the applicants’ properties; at the time the covenant was registered, the applicants’ properties were zoned rural and used for orchards, and were not used for residential subdivision; and it could not have been intended that the applicants’ properties and Lot 20 would be subject to the covenant. The applicants argued that the covenant was an impediment to them proceeding with further intensive subdivision of their properties, primarily for residential use, consistent with the current zoning of their land. The applicants also sought leave, under r 19.5 of the High Court Rules 2016, to bring these proceedings by way of originating application. That application has not been opposed. The Court found it was appropriate for these proceedings, under ss 316 and 317 of the Property Law Act 2007, to be brought by way of originating application. The Court found that the applicants and the Gavins had satisfied the Court that the modification of the covenant should be permitted as allowed for under ss 316 and 317 of the Property Law Act. The Court found that the applicants and the Gavins had agreed that the covenants should be modified in the way they proposed because of a change since the covenant’s creation in the nature or extent of the use being made of the benefited and/or burdened land, and a change in the character of the neighbourhood; the modifications proposed by the applicants would not substantially injure any person entitled to enforce the covenant; and it was otherwise just and equitable to modify the covenant as sought. The Court found that the modification of the covenant will not substantially injure any person entitled to enforce the covenant and it would be just and equitable for the covenant to be modified in the manner proposed. The Court accordingly made orders in terms of the draft orders filed with the High Court on 12 May 2022. Costs were to lie where they fell. Leave was reserved to seek further directions from the Court if necessary.

Orders