Law v Mayall Property Group Limited - [2018] NZHC 3389

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1668

[2018] NZHC 3389

BETWEEN
MEI WO MICHAEL LAW

First Applicant

IN MAN MANDY LAW LEE
Second Applicant

AND

MAYALL PROPERTY GROUP LIMITED

First Respondent

AUCKLAND COUNCIL
Second Respondent

TOM KROON and ANTJE KROON
Third Respondents

………………………..continued

Hearing: On the papers

Counsel:

DK Wilson for applicants

No appearance for or on behalf of respondents

Judgment:

18 December 2018

JUDGMENT OF FITZGERALD J

Solicitors: Alex Lee Lawyers Ltd, Auckland (A Lee)

Law v Mayall Property Group Limited [2018] NZHC 3389 [18 December 2018]

Respondents (continued)

HUADA INVESTMENTS LIMITED
Fourth Respondent
ESTUARY CHT LP
Fifth Respondent
TSAN FAI LO, CAN RONG LUO and WEI ZHU ZENG
Sixth Respondents
UMH GROUP LIMITED
Seventh Respondent

LIANSEN MAO
Eighth Respondent
ER XIA CAO, ER SHENG CAO and JUN WU
Ninth Respondents
WEIHONG HE

Tenth Respondent
LEADING DEVELOPMENTS LIMITED
Eleventh Respondent
XINHAO DEVELOPMENTS LIMITED
Twelfth Respondent
YING-TSUNG LIN and WEN-I LIN
Thirteenth Respondent
TSUNG KUANG CHUEH and HUI-HSIANG KAO
Fourteenth Respondent
DZL INVESTMENT COMPANY LIMITED
Fifteenth Respondent
CHIMBUSCO INTERNATIONAL LIMITED
Sixteenth Respondents
DLL TRADING LIMITED
Seventeenth Respondent

Introduction

[1] The applicants seek to extinguish covenants on land they own at 256 Flat Bush School Road (the Land) in Auckland.1 The covenants are of two kinds, relating to lifestyle blocks (the first covenants), and to farming and fencing (the second covenants).

[2] There are 17 respondents. All have been served but none has participated in the proceedings. The applicants were content for their application to proceed on the papers and this judgment therefore determines whether the covenants should be extinguished.

Background

Background facts to first covenants

[3] According to its title, the Land was acquired by the applicants (and one other) in 2003 and was transferred to the applicants exclusively in 2014.

[4] The first covenants were registered against the title in 1973.2 They referred to the “Land First Described”, being Lots 16 and 17 on Deposited Plan 54823 (which then formed a larger parcel of land than the Land this judgment is concerned with). The relevant covenants provide that the transferee (relevantly the applicants) will not:

(a)use the Land First Described or permit the same to be used for any trading or commercial purpose other than a farming or agricultural purpose which does not involve retail selling;

(b)keep or allow to be kept any pigs upon the Land First Described;

(c)keep or allow to be kept any poultry upon the Land … except such as may be reasonable for the domestic use of those occupying the Land First Described;

(d)deposit or allow to be deposited or left on any part of the [L]and First Described any rubbish or waste or other unsightly material;

(e)erect or place or permit to be erected or placed upon the Land First Described any caravan hu rot shed to be used as a dwelling or

1 The land is identified as NA 116A/567.
2 Registered in transfer 226709.1 on the title to the…

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: [2018] NZHC 3389
Decision Date: 18 December 2018

CaseChat Overview and Summary

The applicants, Mei Wo Michael Law and Mandy Law Lee, sought to extinguish covenants on land they own at 256 Flat Bush School Road in Auckland. The covenants, registered in 1973 and 1998 respectively, restricted the use of the land for farming and lifestyle purposes. Seventeen respondents were served but none participated in the proceedings. The applicants were content for their application to proceed on the papers, leading to this judgment determining whether the covenants should be extinguished.

The court had to decide whether the first set of covenants, relating to lifestyle blocks, and the second set, relating to farming and fencing, should be extinguished. The first covenants were registered in 1973 and referred to the "Land First Described", which was a larger parcel of land than the subject property. These covenants restricted the use of the land for trading or commercial purposes, keeping pigs and poultry, depositing rubbish, erecting caravans or sheds, and erecting buildings. The second covenants, registered in 1998, required the applicants to farm the land in a good and husband-like manner, conserve areas of bush, not permit the accumulation of rubbish, and not remove soil from the land.

The court found that the applicants had satisfied the requirements for service in relation to the covenants. The first set of covenants should be extinguished because the nature and use of the land had changed considerably since the covenants were registered, and the character of the neighbourhood had also changed. The terms of the first covenants provided that they were to cease to have effect when all the relevant land was rezoned residential, which had now occurred. The second set of covenants should also be extinguished because they were effectively redundant, as the terms rendered them redundant, and they reflected a period where the Land was in a significantly different state and zone to the present.

In conclusion, the court made orders extinguishing both sets of covenants on the land at 256 Flat Bush School Road. No orders were made as to costs.

Orders