Kaimai Properties Limited v Queen Elizabeth the Second National Trust
[2025] NZSC 32
•8 April 2025
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA |
| SC 139/2024 [2025] NZSC 32 |
| BETWEEN | KAIMAI PROPERTIES LIMITED |
| BARTONS KAIMAI FARM LIMITED Second Applicant | |
| AND | QUEEN ELIZABETH THE SECOND |
| REGISTRAR-GENERAL OF LAND Second Respondent |
| Court: | Ellen France and Miller JJ |
Counsel: | I C Bassett and T C Waikato for Applicants |
Judgment: | 8 April 2025 |
JUDGMENT OF THE COURT
AThe application for leave to appeal is dismissed.
BThe applicants must pay the first respondent one set of costs of $2,500.
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REASONS
The applicants seek leave to appeal from a judgment of the Court of Appeal in which that Court upheld a High Court decision rejecting the applicants’ challenge to the legitimacy of a Queen Elizabeth the Second open space covenant.[1]
[1]Kaimai Properties Ltd v Queen Elizabeth the Second National Trust [2023] NZHC 3433, (2023) 24 NZCPR 885 (Isac J) [HC judgment]; and Kaimai Properties Ltd v Queen Elizabeth the Second National Trust [2024] NZCA 616 (Cooke, Peters and Grice JJ) [CA judgment].
The covenant was volunteered to the first respondent (the Trust) by the previous owner of the land in 2005, established by deed, and registered on the title in 2007. The first applicant bought the land with knowledge of the covenant in 2009.
As the Court of Appeal observed, this is the second set of proceedings in which the applicants have sought to achieve this outcome.[2] They previously failed to persuade the High Court and Court of Appeal that the open space covenant permitted them to expand their quarrying business into an area which is the subject of the covenant.[3] In the present proceeding they seek to advance a set of new arguments; essentially, that the open space covenant was never lawfully established because they had an interest in the land at that time and did not give their consent to the covenant.
[2]CA judgment, above n 1, at [2].
[3]See Kaimai Properties Ltd v Queen Elizabeth the Second National Trust [2019] NZHC 1591; and Kaimai Properties Ltd v Queen Elizabeth the Second National Trust [2021] NZCA 10, (2021) 21 NZCPR 889.
The Court of Appeal agreed with Isac J that s 22 of the Queen Elizabeth the Second National Trust Act 1977, which provides that the Trust may treat and agree with the owner or lessee of land to be subject to covenant, does not require the Trust to treat and agree with any person who claims an interest in the land.[4] Rather, the section refers to the owner of the freehold estate concerned or, in the case of leasehold land, the person holding the leasehold estate.
[4]HC judgment, above n 1, at [95]; and CA judgment, above n 1, at [28]–[29].
The Court of Appeal did not find it necessary to determine whether the proceeding was an abuse of process in accordance with the principles outlined in Henderson v Henderson, because the Trust ultimately did not take that point.[5]
[5]CA judgment, above n 1, at [55]–[56] citing Henderson v Henderson (1843) 3 Hare 100 at 115, 67 ER 313 (Ch) at 319.
We are not persuaded that the proposed appeal raises a question of general or public importance justifying the attention of this Court.[6] Indeed, counsel for the Trust correctly observe that the applicants make no real attempt to explain why the leave criteria are met. In our view, the proposed appeal is confined to the particular circumstances of the applicants. Nor do the decisions below raise any appearance of a miscarriage of justice.[7]
[6]Senior Courts Act 2016, s 74(2)(a).
[7]Section 74(2)(b); and Junior FarmsLtd v Hampton Securities Ltd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369 at [5].
The application for leave to appeal is dismissed.
The applicants must pay the first respondent one set of costs of $2,500.
Solicitors:
Kāhui Legal, Rotorua for Applicants
LeeSalmonLong, Auckland for First Respondent
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