McGoldrick v Lawson - [2018] NZHC 2643

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CIV-2018-418-000010 [2018] NZHC 2643

BETWEEN
PHILIP JAMES MCGOLDRICK AND

ALISON MOANA AITKEN Plaintiffs

AND

TIMOTHY LAWSON Defendant

Hearing: 8 October 2018

Appearances:

GJC Carter and D J Pine for Plaintiffs
No Appearance for Defendant

Judgment:

11 October 2018

JUDGMENT OF GENDALL J

Introduction

[1] The hearing of the plaintiff’s interlocutory application for a mandatory injunction in this proceeding took place in this Court at Greymouth on 8 October 2018. This hearing had been scheduled in a minute I issued on 31 August 2018 and it was again confirmed in a formal notice from the Court sent to the parties at their respective addresses for service on 26 September 2018.

[2] At this hearing, Mr Carter and Mr Pine appeared as counsel for the plaintiffs. There was no appearance, however, by or for the defendant, Mr Lawson.

[3] Notwithstanding this, the hearing before me proceeded on 8 October 2018 on the basis of all the material before the Court, including Mr Lawson’s Statement of Defence, Notice of Opposition, Affidavit in Support and his other communications
with the Court.

MCGOLDRICK v LAWSON [2018] NZHC 2643 [11 October 2018]

[4] The plaintiffs are, respectively, trustees of the La Dolce Vita Family Trust and the Alison Aitken Family Trust (the Trusts). The Trusts own the property at
51 Beechwater Drive, Lake Brunner. The defendant, Mr Lawson, owns a nearby property at 61B Beechwater Drive, Lake Brunner. 61B Beechwater Drive is subject to various restrictive covenants in favour of, among other properties, 51 Beechwater Drive. The plaintiffs allege that Mr Lawson has erected several buildings on his property in breach of these covenants. They apply for a mandatory injunction ordering Mr Lawson to comply with his obligations under the covenants.

Background

[5] In or around 2005, Arnold Valley Investments Ltd (AVI) subdivided the large block of land at Lake Brunner on which 51 and 61B Beechwater Drive and a number of other sections stand. The Subdivision of this land (the Subdivision) was undertaken, it is accepted, with a view to creating a high-end residential real estate “village” development. Each title within the Subdivision is subject to identical covenants, which are registered to both exist in perpetuity and to be enforceable by other owners within the subdivision. They are set out in an extensive document which outlines the rights, abilities and obligations on all owners within the Subdivision for the use of their particular sites and construction of buildings (the Covenant Document).

[6] Among other obligations, the Covenant Document sets out that the owner of any title within the Subdivision shall:

(a)Not erect or cause to be erected on the servient land any dwellinghouse or other permitted building or other improvements including fencing, letterboxes and other structures unless the plans and specifications for the same (including site plans and elevations) have been first submitted to and have been approved in writing by the Grantor or its nominee. The approval…

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.

Continue reading McGoldrick v Lawson

Details

AGLC: McGoldrick v Lawson [2018] NZHC 2643
Case: [2018] NZHC 2643
Decision Date: 11 October 2018

CaseChat Overview and Summary

In the case of McGoldrick v Lawson, the High Court of New Zealand, Greymouth Registry, heard an interlocutory application for a mandatory injunction by the plaintiffs, trustees of the La Dolce Vita Family Trust and the Alison Aitken Family Trust, against the defendant, Mr. Lawson. The plaintiffs sought the injunction on the basis that Mr. Lawson had erected several buildings on his property at 61B Beechwater Drive, Lake Brunner, in breach of restrictive covenants set out in the Covenant Document. These covenants were intended to maintain the aesthetics and style, value, and look of the residential subdivision for the benefit of all owners, including Mr. Lawson. The primary issues the Court needed to decide were whether the covenants still applied, the definition of the buildings restricted by the Covenant Document, and the impact of the Buildings on the plaintiffs. The Court found that the covenants were still applicable and enforceable by the plaintiffs, who could enforce the covenants alone, without the need to locate all property owners within the Subdivision. The Court also determined that the Buildings in question fell within the definition of a "shed" or "hut" as intended by the Covenant Document. The Court ruled that the presence of low-cost buildings being used for residential accommodation risked undermining the capital value of properties in the Subdivision, regardless of their visibility. The Court concluded that the plaintiffs were entitled to the injunctive relief they sought, and granted a mandatory injunction ordering Mr. Lawson to either permanently remove or demolish the four pre-fabricated buildings on his property by no later than 5 p.m. on 11 November 2018.

The Court also made orders declaring that Mr. Lawson was bound by the negative covenants registered against the title to his property at 61B Beechwater Drive, Lake Brunner, and that the four pre-fabricated buildings erected on the property were in breach of the covenants registered against the title to this property. The Court allowed a period of one month for the removal of the buildings in question, in line with the default provisions provided for under Schedule B of the Covenant Document. The Court ordered Mr. Lawson to pay the plaintiffs' costs on a category 2B scale basis, together with disbursements, as fixed by the Registrar.

Orders