Latter v Bong - [2022] NZHC 20

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2218

[2022] NZHC 20

BETWEEN
JOHN DAVID LATTER

Applicant

AND

YOO CHONG BONG and HWA YOUNG PYUN

First-Named First Respondents

JIANGBO JIN
Second-Named First Respondent

DOROMAY TRUSTEE LIMITED
Third-Named First Respondent

Continued …

Hearing: 14 January 2022

Appearances:

S A Keall and A Nicholls for the Applicant

R O Parmenter for the Third-Named First Respondent No appearance for remaining Respondents

Judgment:

14 January 2022

JUDGMENT OF LANG J

[on application for orders under ss 316 and 317 of the Property Law Act 2007]

This judgment was delivered by me on 14 January 2022 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

LATTER v BONG [2022] NZHC 20 [14 January 2022]

TREVOR GRAHAM WILLIAMS and JANICE MARGARET WILLIAMS
Fourth-Named First Respondents

YINGYI XU
Fifth-Named First Respondent

NISHA MARIAN NATI and DAVID IAN CLARK
Sixth-Named First Respondent

PETER GEORGE KOVACEVICH
Seventh-Named First Respondent

ZIQIANG LI
Eighth-Named First Respondent

[1] Mr Latter is the owner of a residential property situated in Constable Lane, West Harbour. His property is subject to three land covenants created by a Memorandum of Transfer registered against the title to the property in 1985. The covenants are for the benefit of nine neighbouring properties.

[2] Mr Latter has entered into an agreement to sell his property and the purchaser requires the covenants to be removed as a condition of settlement. Mr Latter has therefore applied for orders under ss 316 and 317 of the Property Law Act 2007 (the Act) extinguishing the covenants.

[3] Copies of the present proceeding, together with a Minute issued by Van Bohemen J on 17 December 2021, have been served on the registered proprietors of each of the nine properties affected by the application. The third respondent, Doromay Ltd (Doromay), initially took steps to oppose the application but subsequently consented to it on 16 December 2021. I now make orders by consent between the applicant and Doromay as sought in the joint memorandum of counsel dated 16 December 2021. The owners of the remaining properties have taken no steps to oppose Mr Latter’s application.

[4] The Auckland Council, the territorial authority responsible for the area, has also been served with the application and abides the decision of the Court.

[5] I record that I have been assisted by the fact that I conducted a site visit prior to the commencement of the hearing in the company of Mr Latter’s counsel. This gave me an appreciation of the extent to which the extinguishment of the covenants is likely to affect the properties owned by those parties who have not taken steps to oppose the application.

Background

[6] For ease of reference I attach a plan showing the properties affected by the application. Mr Latter’s property is Lot 99 on the plan. The properties that enjoy the benefit of the covenants registered against the title to his property are Lots 96,…

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: [2022] NZHC 20
Decision Date: 14 January 2022

CaseChat Overview and Summary

John David Latter applied to the High Court of New Zealand to extinguish three land covenants registered against the title to his residential property in Constable Lane, West Harbour. The covenants, created by a Memorandum of Transfer in 1985, benefit nine neighbouring properties. Latter sought to extinguish the covenants as a condition of selling the property. The court had to decide whether jurisdiction existed under sections 316 and 317 of the Property Law Act 2007 to extinguish the covenants, and if so, whether the court should exercise its discretion to do so.

The court found that the first two covenants, which required approval for the construction of any house and prohibited the use of caravans, huts, or sheds as dwellings, had become obsolete as a substantial dwelling had already been constructed on Latter's property. The court held that changes in circumstances justified extinguishing these covenants under section 317(1)(a)(iii) and that it was just and equitable to do so under section 317(1)(f). Regarding the third covenant, which aimed to preserve views over the Waitemata Harbour, the court noted that the development of the neighbouring properties had effectively rendered the covenant obsolete, as the properties were now immune from any potential effects of future development on Latter's land. The court also found that the remaining owners had either consented to or abandoned their rights under the covenant, providing jurisdiction under section 317(1)(c) to extinguish it. The court exercised its discretion in favour of extinguishing the third covenant, concluding that it had no further utility.

The court granted the application, ordering that the restrictive covenants registered against Latter's property be extinguished.

Orders