Johns v Wu - [2017] NZHC 2831

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1781 [2017] NZHC 2831

BETWEEN
LESLIE ROY JOHNS AND

LEONIE MARY JOHNS Plaintiffs

AND

YUN FENG WU AND XIAO WEI CHENG Defendants

Hearing: 17 November 2017

Appearances:

G Round for Plaintiffs
DCL Liu for Defendants

Judgment:

17 November 2017

ORAL JUDGMENT OF MUIR J

Counsel/Solicitors:
G Round, Law & Associates, Manukau City
DCL Liu, Yu Law, Auckland

JOHNS v WU [2017] NZHC 2831 [17 November 2017]

Introduction

[1] The plaintiffs, Mr and Mrs Johns, are the owners of a property at 35 Peretao Rise, The Gardens, Manurewa. In their statement of claim they seek a mandatory injunction against the first defendants for the removal of a secondary dwelling which the first defendants are currently constructing on their property at 26 Peretao Rise. Both properties are located at the end of a cul-de-sac and are in closer physical proximity than their respective addresses suggest, although they are not immediate neighbours.

[2] Two interlocutory matters are listed before me today. The first is an application for interim injunction by Mr and Mrs Johns to prevent further work on the dwelling. The second is a cross-application by the first defendants for summary judgment and/or to strike out the plaintiffs’ claim.

[3] At a telephone conference held with the parties on 14 November 2017, Mr Round for the plaintiffs indicated that, on the interim injunction application, his clients would not be seeking mandatory relief in the form of removal or demolition of the dwelling and this morning, after discussions between counsel and the bench, he further advises that the application for interim relief preventing completion of the works would similarly be withdrawn. That was in my view a sensible concession on the part of the plaintiffs. The dwelling in question is now substantially constructed. It is closed in with the joinery and roof now in place. Some interior works remain to be completed but it is clear that such works will not make the dwelling any more or less objectionable from the plaintiffs’ perspective than is currently the case. Indeed, completion of the works may allow for a more satisfactorily presented property.

[4] That said, Mr Round emphasises that the first defendants have been on notice since at least June of 2017 that, from the plaintiffs’ perspective, the secondary dwelling is non-compliant with the terms of a covenant central to the case and that by continuing with construction (and now finishing works) they do not advance their position in terms of the exercise of the Court’s discretion on ultimate determination of the plaintiffs’ application for mandatory relief.

The secondary dwelling

[5] At a time likely to have been the early 1990s, a brick and tile home was constructed on the first defendants’ property at 26 Peretao Rise. The first defendants purchased the property in 2014. Approximately two years later they say that they “decided that it would be a good idea to build a granny flat”…

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 Johns v Wu

Details

AGLC: Johns v Wu [2017] NZHC 2831
Case: [2017] NZHC 2831
Decision Date: 17 November 2017

CaseChat Overview and Summary

The plaintiffs, Mr and Mrs Johns, sought an injunction to prevent the first defendants from completing the construction of a secondary dwelling on their property, on the basis that it was in breach of a covenant which binds their property and of which the plaintiffs are beneficiaries. The first defendants sought summary judgment or alternatively, to strike out the plaintiffs' claim. The court found that there was a serious question to be tried in terms of whether the plaintiffs had standing to bring the claim, whether the covenant was intended to apply to all residential buildings on the property and whether the cost of the dwelling complied with the covenant. The court also found that the defendants had commenced construction of the dwelling without the necessary approval from the council. Given these issues, the court declined to enter summary judgment or strike out the plaintiffs' claim and directed that an amended statement of claim be served on the defendants and a case management conference be set down after 1 February 2018. The parties were also encouraged to collate discovery and the court expected the matter to be disposed of in a maximum of two days. The defendants' application for summary judgment was dismissed with costs.

Orders