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…

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: [2020] NZHC 1085
Decision Date: 22 May 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Associate Judge Paulsen heard an application by Land Depot Limited to extinguish certain land covenants under sections 316 and 317 of the Property Law Act 2007. Land Depot sought to extinguish these covenants on the basis that they were redundant and no longer served a purpose. The application was made as an originating application under Part 19 of the High Court Rules 2016, which allows for a streamlined process in certain cases. Various landowners, including Franziska Johanna Friese and others, were named as respondents and would be affected by the outcome of the application. The Christchurch City Council was also required to be notified and could be heard in support or opposition to the application.

The primary legal issue before the court was whether the application should be permitted to proceed under the Part 19 originating application procedure, given that such proceedings are generally not envisioned under the statute for extinguishing land covenants. The court needed to determine if the interests of justice would be served by allowing the application to proceed without full pleadings and interlocutory steps, which are typically required under Part 18 of the High Court Rules 2016. The court also had to consider the absence of a memorandum of counsel, which is usually expected to provide the court with relevant principles, authorities, and analysis in support of the application.

Associate Judge Paulsen determined that while proceedings under sections 316 and 317 of the Property Law Act 2007 were not typically brought under Part 19, the court could permit such a proceeding if the interests of justice so required. The judge noted that Part 19 was designed for cases that did not necessitate full pleadings and interlocutory steps for proper determination. Although the application involved multiple parties, the judge found that the issues were clearly defined, the interests of the respondents were likely to be aligned, and the matter could be adequately addressed through affidavit evidence. Consequently, the judge granted leave for the application to proceed under the Part 19 originating application procedure, directing that it be served on all named respondents and the Christchurch City Council. The application was set to be mentioned before a Duty Judge on 22 June 2020.

Orders