Land Depot Ltd v Friese

[2020] NZHC 1085

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000198

[2020] NZHC 1085

UNDER

Part 19 of the High Court Rules 2016 and sections 316 and 317 of the Property Law Act 2007

IN THE MATTER

of an Application to extinguish a covenant

BETWEEN

LAND DEPOT LIMITED

Applicant

AND

FRANZISKA JOHANNA FRIESE

First Respondent

AND

PHILIPPA MAY ADAMS and STANLEY CHARLES BAKER

Second Respondents

AND

GRANT NOEL BRIGHT and KAREN ANN NICHOLAS

Third Respondents

AND

DEANNE LEA DOWDING and MALCOLM LESLIE DOWDING

Fourth Respondents

AND

ANNE ILES and PETER GRANT ILES

Fifth Respondents

AND

CAROL AGNES ROBINSON, TONY DEAN ROBINSON and SUSAN MARY TODD

Sixth Respondents

AND

LINDSAY WILLIAM WELCH and MARILYN THERESE WELCH

Seventh Respondents

AND

DIANE OLIVIA ROLTON and VERNON CLAUDE ROLTON

Eighth Respondents

LAND DEPOT LIMITED v FRANZISKA JOHANNA FRIESE [2020] NZHC 1085 [22 May 2020]

AND

DAVID CHARLES BENBOW

Ninth Respondent

AND

LORRAINE ANGELA BOYCE

Tenth Respondent

AND

CAROLE KAY GAINS and PAUL RICHARD MARK GAINS

Eleventh Respondents

AND

WATTS ROAD INVESTMENTS LIMITED

Twelfth Respondent

Hearing:	Determined on the papers
Counsel:	J M Pow and J A Higby for Applicant
Judgment:	22 May 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 22 May 2020 at 10.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

The application

[1]    The applicant wishes to make an application under ss 316 and 317 of the Property Law Act 2007 for orders extinguishing certain land covenants affecting land it intends to develop and which it says are redundant.

[2]    The named respondents are landowners who may be affected by the application.

[3]    The applicant applies to make its application under ss 316 and 317 by way of originating application under pt 19 of the High Court Rules 2016.

The need for a memorandum of counsel

[4]    The application for leave to proceed under pt 19 was not accompanied by a memorandum of counsel (or indeed anything by way of submission) providing the court with the information it would ordinarily expect in support of a without notice application of this type. Applications to proceed under pt 19 are not treated as mere formalities. The court is greatly assisted if counsel provide a memorandum with relevant principles, authorities and analysis.

Discussion

[5]    A proceeding under ss 316 and 317 of the Property Law Act 2007 is not one that the High Court Rules contemplate will be brought under pt 19. Under r 19.5(1) the court may permit a proceeding to be brought under pt 19 if the interests of justice permit. Permission may be sought without notice.1

[6]    Part 19 is a procedure generally used for cases where it is not necessary to have full pleadings and interlocutory steps for the proper determination of the issues.2 It is designed to be a speedier and less expensive mechanism than the pt 18 procedure or a general proceeding.3 The procedure is not confined to situations where there is no

1      High Court Rules 2016, r 19.5(2).

2      Fisk v X [2014] NZHC 2797.

3      Public Trust v Kain [2018] NZHC 1547 at [15].

opposing party but it is an exceptional procedure for contested proceedings. It should not be adopted as a shortcut for urgent cases.

[7]    In Solar Bright Ltd v Martin, Solar Bright sought declarations pursuant to s 141 of the Companies Act 1993 and leave to bring the proceeding under pt 19, rather than by way of ordinary proceeding.4 Osborne J relied upon Hong Kong & Shanghai Bank Corporation Ltd v Erceg, in which Asher J stated:5

… The type of proceeding suited to the originating application procedure is a straightforward application, not requiring detailed pleadings or interlocutory orders … [It] is not well suited to the determination of substantive rights involving the application of common law doctrines as distinct from statutory tests. It is not well suited to cases involving multiple parties, and cases where there is the possibility of crossclaims or counterclaims.

[8]Osborne J said in Solar Bright Ltd:6

What Erceg and the other cases indicate is that resort to r 19.5 is to be exceptional rather than so common place that it becomes the rule that leave is granted. The cases recognise, as the rule itself stipulates, that it is the interests of justice which this Court must apply as the overarching test. The interests of justice mean that the Court must secure the just, speedy, and inexpensive determination of this proceeding in its consideration of a r 19.3 application.

[9]    Here, the applicant has an onus to satisfy the court that the interests of justice require that it be granted leave to permit its application to be made by originating application.

[10]   My research indicates that there have been many instances where the court has permitted applications under ss 316 and 317 of the Property Law Act to proceed by way of originating application. Having regard to the affidavit evidence, and notwithstanding the multiplicity of parties, I am satisfied that this proceeding is suited to the originating application procedure because it is brought pursuant to a statutory provision, will not involve consideration of common law doctrines, the issues appear to be clearly defined and confined, the interests of the respondents are likely to be closely aligned and the issues should be adequately addressed through affidavit

4      Solar Bright Ltd v Martin [2019] NZHC 300.

5      Hong Kong & Shanghai Bank Corporation Ltd v Erceg (2010) 20 PRNZ 652 (HC) at [25].

6      Solar Bright Ltd v Martin, above n 4, at [18].

evidence.    I also do not see the potential for significant discovery or opposed interlocutory applications.

Result

[11]   I grant leave to the applicant to commence this proceeding under the pt 19 High Court Rules originating application procedure.

[12]   I direct that the application shall be served on all of the named respondents and, in addition, pursuant to s 316(3) of the Property Law Act 2007, it must be served on the Christchurch City Council which shall be entitled to be heard in support or opposition to the application.

[13]   With the application, the named respondents and the Christchurch City Council shall be served with this judgment and the sealed judgment of the court.

[14]The application shall be called for mention before a Duty Judge on Monday,

22 June 2020 at 11.45 am.

O G Paulsen Associate Judge

Solicitors:
Tavendale and Partners, Christchurch