Pontifex Ii Limited v Hayhow - [2023] NZHC 1206

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2339

[2023] NZHC 1206

BETWEEN
PONTIFEX II LIMITED

Applicant

AND

NICOLE HAYHOW

First Respondent

AND

CALUM MAXWELL PENROSE AND CAROLE ANNE PENROSE

Second Respondents

AND

SIXIAN LIN AND JIANFENG LIN

Third Respondents

AND

JOHN RICHARD COLTMAN AND JUDITH ELIZABETH COLTMAN

Fourth Respondents

Cont:/

Hearing: 27 April 2023

Appearances:

A Holmes and Z Matti for Applicant E St John for Fourth Respondents

Judgment:

23 May 2023

JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 23 May 2023 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Greenwood Roche, Auckland Ewart & Ewart, Auckland

PONTIFEX II LTD v HAYHOW [2023] NZHC 1206 [23 May 2023]

AND
Cont:/

ANTHONY EDWARD BUTTIMORE
Fifth Respondent

AND

MINI C TRUSTEE LIMITED

Sixth Respondent

AND

BERNARD GRAHAM BOYCE AND PATRICIA GAIL BOYCE

Seventh Respondents

AND

GRAHAM NEIL BARNES AND SANDRA ESTELLE BARNES

Eighth Respondents

AND

PETER DENIS MITCHELL WILCOCK AND JANICE EVELYN WILCOCK

Ninth Respondents

AND

GRAEME LINDSAY CLEGG AND CHORTHIP CLEGG

Tenth Respondents

AND

GEORGE ARTHUR HILL, LYNDA MAREE HILL AND DAVID GWYN LEWIS

Eleventh Respondents

AND

DENISE GAY WILSON, GRANT

TIMOTHY WILSON AND LEICESTER JAC FORGES GOUWLAND

Twelfth Respondents

AND

RNJ FIRST INVESTMENT LIMITED

Thirteenth Respondent

AND

LAP HANG CHOW AND LAP LEE CHOW

Fourteenth Respondents

AND

AUCKLAND COUNCIL

Fifteenth Respondent

Introduction

[1] Pontifex II Limited (Pontifex) is the registered owner of land at 234 Whangapouri Road, Karaka, being Lot 3 Deposited Plan 488481, comprised in record of title 700603 (the Pontifex Property). The Pontifex Property is the product of a series of subdivisions, and amongst others is subject to instrument C247179.2 (Old Covenant).

[2] Pontifex applies for an order under s 317 of the Property Law Act 2007 (the Act) that the Old Covenant be either:

(a)extinguished in part so that the Pontifex Property is no longer subject to the Old Covenant; or

(b)modified in part so that the Old Covenant does not restrict the construction of a dwelling on the Pontifex Property.

[3] Pontifex’s application is unopposed. I am satisfied in terms of s 317 of the Act that the Old Covenant ought to be modified as outlined above at [2(b)].

[4] The fourth respondents, John Coltman and Judith Coltman, have filed a notice of appearance for an ancillary purpose. Through their counsel, Mr St John, the Coltmans seek similar extinguishment or modification orders in relation to a similar covenant registered against their neighbouring land (the Coltman Property). Alternatively, the Coltmans seek that this proceeding be held open so that they may pursue their own application relying on the materials on file.

[5] I decline to direct that this proceeding be held open. However, I grant the Coltmans leave to bring a similar application under s 317 to that brought by Pontifex by way of originating application.

[6]My reasons follow.

Background

[7] The Old Covenant was created in 1991 as part of an initial subdivision of a…

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: [2023] NZHC 1206
Decision Date: 23 May 2023

CaseChat Overview and Summary

The case of Pontifex II Limited v Hayhow involved an application by Pontifex II Limited to modify or extinguish a covenant that restricted the construction of a dwelling on their property. The respondents were various owners of neighbouring properties, including the Coltmans, who sought similar orders in relation to their own properties. The court was required to determine whether the covenant should be modified or extinguished under section 317 of the Property Law Act 2007.

The court considered the legal principles applicable under section 317, including the factors relevant to determining whether the covenant should be modified or extinguished. The court found that the covenant should be modified, rather than extinguished, to reflect the terms of a newer covenant that was already in place. The court also granted the Coltmans leave to bring a separate application for similar orders in relation to their property.

The reasoning of the court was based on the fact that the covenant was no longer relevant to the character of the neighbourhood, which had transitioned from a rural productive use to a rural lifestyle or residential use. The court also found that the modification would not cause substantial injury to the owners of neighbouring properties, as the newer covenant already provided adequate restrictions. The court considered the lack of opposition from affected parties as a factor in favour of granting the modification. The court also found that the modification would be just and equitable, as it would not result in any substantial injury to the owners of neighbouring properties.

The final orders of the court were that the covenant be modified to allow for the construction of a single dwelling on the Pontifex property, and that the Coltmans be granted leave to bring a separate application for similar orders in relation to their property. There was no order as to costs.

Orders