IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-001781
[2019] NZHC 12
BETWEEN
LESLIE ROY JOHNS and LEONIE MARY JOHNS Plaintiffs
AND
YUN FENG WU and XIAO WEI CHENG
First Defendants
AND
AUCKLAND COUNCIL
Second Defendant
Hearing:
17 & 18 September 2018, 20 November 2018
Appearances:
G J Round for Plaintiffs
E St John for First Defendant S F Quinn for Second Defendant
Judgment:
17 January 2019
JUDGMENT OF NICHOLAS DAVIDSON J
JOHNS and JOHNS v WU and CHENG [2019] NZHC 12 [17 January 2019]
INDEX
Para No
A. INTRODUCTION
[1]
Background
[1]
Litigation history and pleading
[9]
B. THE COVENANT
[14]
History
[14]
C. OVERVIEW OF EVIDENCE
[25]
The ‘Modal’ house and The Index
[37]
Inspection
[45]
A perspective
[46]
D. ISSUES RELEVANT TO INTERPRETATION AND ENFORCEABILITY OF THE COVENANT
[49]
The ‘costs’ or ‘value’ calculation under the covenant
[49]
What ‘build costs’ are relevant to the operation of the covenant?
[50]
The architectural and retrospective minimum build costs certification
[55]
Does the covenant apply to “secondary” dwellings?
[56]
E. IS THE COVENANT ENFORCEABLE IN WHOLE OR IN PART?
[65]
The competing positions
[65]
Interpretation / a replacement mechanism for the Index?
[67]
Rectification / Implication
[80]
Discussion
[86]
Bonnar
[99]
Conclusion as to a substitute mechanism – and compliance of this dwelling
under such
[101]
An imperfect analogy to the Index
[104]
F. OBSERVATIONS
[112]
Is the Council’s decision to approve or not approve subject to judicial review,
and if so, by whom?
[113]
Does the Council owe a duty of care to neighbours, and if so, to whom?
[125]
Is the Council liable to the plaintiffs in negligence?
[126]
What loss have the plaintiffs suffered
[127]
G. SUMMARY OF JUDGMENT
[128]
Covenant
[132]
Concluding Comments
[136]
H. DISPOSITION
[138]
A. INTRODUCTION
Background
[1] The attempt to control the appearance and “value” of residential dwellings to maintain economic and aesthetic qualities of a neighbourhood has taken different forms over the years. Mechanisms can be found in District Plans (formerly Schemes), conditions of resource consents and instruments registered on land titles. This judgment concerns one such attempt more than 25 years ago by the registration of a (restrictive) covenant on certificates of title (identifiers), in what is now an attractive residential subdivision in Manurewa, Auckland.
[2] The covenant was registered pursuant to a memorandum of transfer dated 30 May 1990 when bare land in Auckland was sold by the then Manukau City Council for residential development. One Lot, to which the covenant applies, is now owned by the first defendants, Yun Feng Wu and Xiao Wei Cheng (“Mr Wu” and “Ms Cheng”). The covenant is discussed further in this judgment, but focus falls on sub-clauses which purport to impose a minimum ‘cost’ of construction, to impose a check on the design of a “residential building”, and to prohibit the use of specified construction materials.
[3] The factual setting is a small residential building of 60 m2,…
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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AGLC
Johns v Wu [2019] NZHC 12
Case
[2019] NZHC 12
Decision Date
CaseChat Overview and Summary
In the case of Johns v Wu, the plaintiffs sought an injunction for non-compliance with a restrictive covenant and a claim in negligence against the Auckland Council for approving a dwelling that allegedly breached the covenant. The legal issues included the enforceability of the covenant, particularly the minimum build cost requirement, and the Council's role in approving the covenant. The court held that the covenant was enforceable in most respects but not as to the minimum build costs, as there was no equivalent mechanism to the discontinued Modal Housing Index. The court also concluded that the Council had acted properly in approving the dwelling and that there was no evidence of loss to the plaintiffs. Consequently, the court rejected the plaintiffs' claims against the defendants and the Council, and dismissed their case in its entirety.