Re Barfilon Investment Ltd
[2019] NZHC 780
•11 April 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-1251
[2019] NZHC 780
IN THE MATTER
AND
of Part 7 and 19 High Court Rules and
ss 316 and 317 of the Property Law Act 2007
IN THE MATTER
of an application by BARFILON INVESTMENT LIMITED, L & W RISING LIMITED, BURBERRY DEVELOPMENTS LIMITED and BURBERRY ROAD 32
LIMITED for an order modifying covenant Applicants
Hearing: 8 March 2019 Appearances:
D J Neutze and C Robertson for the Applicants
J G Goodyer for Interested Party Elly S-Y Pan in support
R O Parmenter for Interested Parties Frewin/Duggan and GuthrieJudgment:
11 April 2019
JUDGMENT OF GAULT J
This judgment was delivered by me on 11 April 2019 at 11:00 a.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
RE BARFILON INVESTMENT LTD, L & W RISING LTD, BURBERRY DEVELOPMENTS LTD and BURBERRY ROAD 32 LIMITED [2019] NZHC 780 [11 April 2019]
[1] The four applicants each own a property in Drury, South Auckland.1 Those four properties, and other neighbouring land, are encumbered by a covenant registered on the various titles that precludes relatively small or low-cost dwellings.2 The applicants seek an order modifying the covenant so that it no longer applies to their properties, in reliance on ss 316 and 317 of the Property Law Act 2007 (the Act).
[2] The application arises because the applicants, in conjunction with a developer, Karaka and Drury Consultant Ltd (KDCL), wish to have their properties developed as part of a development in Drury, known as the Auranga Project, under a resource consent issued by Auckland Council on 10 August 2016 and in accordance with the Housing Accords and Special Housing Areas Act 2013 (HASHAA).
[3] It is common ground that the covenant prevents development in accordance with the resource consent. The Auranga Project will involve a mix of stand-alone houses, terraced homes and manor apartments on land that is currently used for farming and/or lifestyle blocks. It will also include affordable housing under HASHAA.
[4] The application was served on the owners of each of the other 15 properties subject to the covenant as well as Auckland Council in accordance with s 316 of the Act. Owners of two of the 15 properties have consented to the application, including Ms Pan, whose counsel, Ms Goodyer, appeared in support. Owners of two other properties have confirmed they do not oppose. Owners of another two properties oppose the application – the owners of 5 Burberry Road and 18 Burberry Road.3 The remainder have taken no steps.
Factual background
[5] The covenant was executed in 1995 following the subdivision of some 57 hectares of land for the purposes of sale of those lots comprising rural residential lots
1 Barfilon Investments Ltd – 132 Bremner Road; L & W Rising Ltd – 138 Bremner Road; Burberry Developments Ltd – 31 Burberry Road; and Burberry Road 32 Ltd – 37 Burberry Road.
2 Land Covenant C892866.1
3 Michael Eric Frewin, Sheryl Vicky Duggan and MEF Trustee Company Ltd (½ share) and Sheryl Vicky Duggan, Michael Eric Frewin and Vickys Trustee Company Ltd (½ share) – 5 Burberry Road (“Frewin/Duggan”); and James Nicholas Guthrie, Laurel Gillian Guthrie and MGH Trustees Ltd – 18 Burberry Road (“Guthrie”).
suitable for horticulture or other agricultural or pastoral production or use accompanied by a rural residential lifestyle. The intention was that all the lots (except for one which already contained an existing high quality homestead and outbuildings in keeping with the intent) shall be subject to a general scheme applicable to and for the benefit of all of the rural lots to the intent that a high standard of rural residential amenities shall be enjoyed by the registered proprietors and all of the lots and that of the owner or occupier for the time being of each of the lots should be bound by the stipulations and restrictions in the schedule – relevantly that dwellings would be no less than 210 sqm in area and built at a cost of no less than a value based on $220,000 as at 1 September 1995 and indexed such that the figure as at 15 September 2017 had increased to $866,500.34. The covenant was to benefit and burden all of the respective owners and occupiers.
[6] When the covenant was established in 1995, the properties that are encumbered by it were all zoned Rural Plains in the former Papakura District Plan. They were also located outside the Metropolitan Urban Limits identified in the Auckland Regional Policy Statement 1999 and therefore were identified as part of Rural Auckland.
[7] On 29 March 2012 the Auckland Council adopted the Auckland Plan, which identified the Drury area as “Greenfield Areas for Investigation”.
[8] On 16 September 2013 HASHAA came into force. Its purpose is to enhance housing affordability by facilitating an increase in land and housing supply in certain regions or districts, including Auckland, identified as having housing supply and affordability issues.
[9] On 30 September 2013 the Auckland Council notified the Proposed Auckland Unitary Plan (PAUP), which proposed that an area including the four properties now owned by the applicants be zoned “Future Urban”.
[10] On 30 June 2014, the applicant, Barfilon Investment Ltd became registered proprietor of 132 Bremner Road.
[11] On 17 August 2015 the Bremner Road Special Housing Area (SHA) was gazetted by Order in Council. This included two of the properties now owned by the applicants.4 On 15 February 2016 the SHA was extended to include the other two properties now owned by the applicants.5
[12] On 29 April 2016 the applicant Burberry Developments Ltd became registered proprietor of 31 Burberry Road.
[13] On 10 May 2016 KDCL lodged an application to Auckland Council for a variation to the PAUP to rezone the land in the SHA (84.62 hectares) from Future Urban to a combination of Terrace Housing and Apartment Building, Mixed Housing Urban, Mixed Housing Suburban, and Local Centre zones and establishing the Drury 1 Precinct under s 61 of HASHAA and an application for a concurrent qualifying development resource consent for the initial development of 51 lots under s 25 of HASHAA (the planning applications).
[14] The Auranga Project involves development well beyond the applicants’ properties, covering a number of other properties to their north. The Auranga Project does not include properties, other than the sites owned by the applicants, that are subject to the covenant. Those properties are to the west and south of the applicants. Mr Ma of KDCL said that the Auranga Project will assist in addressing Auckland’s housing crisis. There will be a mix of stand-alone houses, terraced homes and manor apartments on land that is currently used for farming and/or lifestyle blocks. It will also include affordable housing under HASHAA (the requirements of which are now contained in the Drury 1 Precinct of the PAUP). KDCL has made a commitment to provide 15 per cent of the Auranga Project as affordable housing. This is higher than the statutory minimum of 10 per cent. One of the requirements of the Council with affordable housing is that it is spread throughout the development and is not clustered together in one part of the development. Accordingly, KDCL cannot only have larger, more expensive homes on the sites, as it would not comply with the requirements of the Drury 1 Precinct of the PAUP.
4 132 Bremner Road and 31 Burberry Road.
5 138 Bremner Road and 37 Burberry Road.
[15] On 16 May 2016 the applicant L & W Rising Ltd became registered proprietor of 138 Bremner Road.
[16] The planning applications were heard by independent commissioners on 27 July 2016 and on 10 August 2016 they issued their decisions authorising the rezoning of the SHA and granting resource consent.
[17] On 21 December 2016 the applicant Burberry Road 32 Ltd became registered Proprietor of 37 Burberry Road.
Legal principles
[18]Sections 316 and 317 of the Act provide:
316Application for order under section 317
(1)A person bound by an easement, a positive covenant, or a restrictive covenant (including a covenant expressed or implied in an easement) may make an application to a court for an order under section 317 modifying or extinguishing that easement or covenant.
(2)That application may be made in a proceeding brought by that person for the purpose, or in a proceeding brought by any person in relation to, or in relation to land burdened by, that easement or covenant.
(3)That application must be served on the territorial authority in accordance with the relevant rules of court, unless the court directs otherwise on an application for the purpose, and must be served on any other persons, and in any manner, the court directs on an application for the purpose.
317Court may modify or extinguish easement or covenant
(1)On an application (made and served in accordance with section 316) for an order under this section, a court may, by order, modify or extinguish (wholly or in part) the easement or covenant to which the application relates (the easement or covenant) if satisfied that—
(a)the easement or covenant ought to be modified or extinguished (wholly or in part) because of a change since its creation in all or any of the following:
(i)the nature or extent of the use being made of the benefited land, the burdened land, or both:
(ii)the character of the neighbourhood:
(iii)any other circumstance the court considers relevant; or
(b)the continuation in force of the easement or covenant in its existing form would impede the reasonable use of the burdened land in a different way, or to a different extent, from that which could reasonably have been foreseen by the original parties to the easement or covenant at the time of its creation; or
(c)every person entitled who is of full age and capacity—
(i)has agreed that the easement or covenant should be modified or extinguished (wholly or in part); or
(ii)may reasonably be considered, by his or her or its acts or omissions, to have abandoned, or waived the right to, the easement or covenant, wholly or in part; or
(d)the proposed modification or extinguishment will not substantially injure any person entitled; or
(e)in the case of a covenant, the covenant is contrary to public policy or to any enactment or rule of law; or
(f)in the case of a covenant, for any other reason it is just and equitable to modify or extinguish the covenant, wholly or partly.
(2)An order under this section modifying or extinguishing the easement or covenant may require any person who made an application for the order to pay to any person specified in the order reasonable compensation as determined by the court.
[19]Mr Neutze, counsel for the applicants, relied on s 317(1)(a), (b) and (d).
[20] It is common ground that it is only necessary for one of the criteria in s 317(1)(a)-(f) to be established in order to found jurisdiction to extinguish or modify a covenant. The Court must then consider whether it is an appropriate case to exercise its discretion.6
[21] Mr Parmenter, counsel for Frewin/Duggan and Guthrie, accepted there was jurisdiction in the sense that the threshold in one or other of the paragraphs of s 317(1) applied. Nevertheless, he submitted that the Court should not exercise the discretion to modify the covenant.
6 North Holdings Development Ltd v WGB Investments Ltd [2014] NZHC 670 at [55].
[22] The legislative history leading to the current s 317 was helpfully summarised by Randerson J in Harnden v Collins.7 For present purposes, it is sufficient to note that there has been a progressive broadening of the scope of the provision empowering the Courts to modify or extinguish easements and covenants as well as a relaxation of the approach the Courts have adopted to the exercise of discretion.8 The addition of a power to award compensation in 2007 (recommended by the Select Committee) is a significant improvement to the exercise of the jurisdiction since it enables the Court in an appropriate case to order compensation as a means of eliminating or diminishing any adverse effects of an order.9
[23] Even so, the benefit of a covenant should be taken away only where good grounds are shown. It is not for the owner of the dominant tenement to demonstrate a necessity for the continuation of the covenant. It is for the party seeking extinguishment or modification to satisfy the Court that reasons exist for any orders sought. It is for those parties to satisfy the Court that a proposed modification is appropriate.10
Issues
[24]The issues I must determine are:
(a)Has there been a change of circumstances since the covenant was created such that it ought to be modified?
(b)Would continuation of the covenant impede the reasonable use of the burdened land in a different way, or to a different extent, from that which could reasonably have been foreseen at the time of its creation?
(c)Would the proposed modification of the covenant substantially injure any of the interested parties?
7 Harnden v Collins [2010] 2 NZLR 273 (HC) at [24]-[34].
8 At [25].
9 At [29]-[34].
10 Waikauri Bay Reserve Ltd v Jamieson HC Auckland CP1981/87, 12 February 1990 at 13, concerning an easement but the same applies to a covenant. See also Manuka Enterprises Ltd v Eden Studios Ltd [1995] 3 NZLR 230 (HC) at 233.
(d)If the answer to any of (a) to (c) is yes, should I exercise the Court’s discretion to modify the covenant?
Has there been a change of circumstances since the covenant was created such that it ought to be modified?
[25] Under s 317(1)(a), the relevant change can be in any or all of: (i) the nature or extent of the use being made of the benefitted land, the burdened land, or both; (ii) the character of the neighbourhood; (iii) any other circumstance the Court considers relevant. Mr Neutze relied primarily on (i) and (iii).
[26] The real question is whether, by reason of any change of the kind mentioned, the covenant should be modified. The focus is not on the fact of change, but rather on its impact from the point of view of making it appropriate to modify the covenant.11
[27] The focus should be on the effect of the covenant if it is not modified or extinguished, rather than the effect of such a modification.12
[28] Without being a pre-condition, the most common justification for the exercise of jurisdiction under s 317(1)(a) will be evidence that the relative advantages and disadvantages flowing from the covenant have become totally disproportionate by reason of changes which have occurred since its creation.13
[29] Mr Neutze relied on several cases where plan or use changes were found to constitute a sufficient change of circumstances to modify or extinguish a covenant.14
11 Jansen v Mansor (1995) 3 NZConvC 192,111 (CA), concerning s 126G(1)(a) of the Property Law Act 1952, the predecessor to s 317(1)(a); and Stonehill Trustee Ltd v New Zealand Industrial Park Ltd [2018] NZHC 2938 at [20].
12 Luxon v Hockey (2005) 5 NZCPR 125 (HC) at [14]; and Stonehill Trustee Ltd v New Zealand Industrial Park Ltd [2018] NZHC 2938 at [20].
13 Manuka Enterprises Ltd v Eden Studios Ltd [1995] 3 NZLR 230 (HC) at 234; North Holdings Development Ltd v WGB Investments Ltd [2014] NZHC 670 at [28]; and Stonehill Trustee Ltd v New Zealand Industrial Park Ltd [2018] NZHC 2938 at [21].
14 North Holdings Development Ltd v WGB Investments Ltd [2014] NZHC 670 at [55]; Purdie v Truckell [2016] NZHC 1231; Re Aklander Investment Ltd [2017] NZHC 2939; and Stonehill Trustee Ltd v New Zealand Industrial Park Ltd [2018] NZHC 2938.
[30] In North Holdings Development Ltd v WGB Investments Ltd the covenant reflected the previous zoning. Katz J considered that zoning changes are appropriately taken into account in the “any other circumstance” limb of s 317(1)(a)(iii).15
[31] As in North Holdings, due to the zoning change in this case there is now a direct conflict between the covenant and the zoning under the District Plan.
[32] As Downs J said in Re Aklander Investment Ltd, which concerned a proposed development in Flat Bush requiring modification of a 1996 covenant, “Auckland has changed – and grown significantly – since then”.16
[33] I am satisfied in this case that the combination of the creation of the SHA, the change of zoning from Rural Plains to a combination of Terrace Housing and Apartment Building, Mixed Housing Urban, Mixed Housing Suburban, and Local Centre zones and establishing the Drury 1 Precinct, and the qualifying development resource consent, give rise to such a change since the covenant was created in 1995 that it is appropriate for the covenant to be modified.
Would continuation of the covenant impede the reasonable use of the burdened land in a different way, or to a different extent, from that which could reasonably have been foreseen at the time of its creation?
[34] Section 317(1)(b) envisages situations where the reasonable user of the land subject to a covenant is impeded by its existence because of a change of circumstances which could not have been reasonably foreseen by the original parties. This change will necessarily result in the covenant being a greater burden to the proprietor of the servient tenement.17
[35] In North Holdings, Katz J considered the reasonable use of the land by reference to its zoning.18 Taking the same approach, the current reasonable use of the land, with reference to its zoning, is a combination of Terrace Housing and Apartment
15 North Holdings Development Ltd v WGB Investments Ltd [2014] NZHC 670 at [30].
16 Re Aklander Investment Ltd [2017] NZHC 2939 at [3].
17 Harvey v Hurley (2000) 9 NZCPR 427 (CA) at [27], concerning s 126G(1)(b) of the Property Law Act 1952, the predecessor to s 317(1)(b); and Stonehill Trustee Ltd v New Zealand Industrial Park Ltd [2018] NZHC 2938 at [25].
18 North Holdings Development Ltd v WGB Investments Ltd [2014] NZHC 670 at [32]-[33].
Building, Mixed Housing Urban, Mixed Housing Suburban, and Local Centre. The previous reasonable use of the land, under its former zoning, was Rural Plains. Accordingly, following the zoning change, the covenant impedes the reasonable use of the burdened land in a different way, or to a different extent from that in place at the time the covenant was created.
[36] Could that change reasonably have been foreseen in 1995? The onus is on the applicants but there is nothing to suggest this zoning change could or should have been foreseen in 1995.
Will the proposed modification of the covenant substantially injure any of the interested parties?
[37] Section 317(1)(d) allows the Court to extinguish a covenant if it is satisfied the proposed extinguishment will not substantially injure the person entitled. “Substantially” has been read to mean injury that is “real, considerable, significant as opposed against insignificant, unreal or trifling”.19 Again, the onus remains on the applicants.
[38] Here, there is no suggestion the parties opposing will be injured financially. Indeed, they do not claim compensation. Their concern, understandably, is not with the way modification might affect the value of their land but with how it will affect the enjoyment of their properties. An injury may be substantial even though the value of the land in question is not affected.20
[39] The applicants’ expert landscape architect, Mr Pryor, considered that the proposed modification would not create any adverse landscape effects either within or external to the sites involved. However, his conclusion was expressed by reference to the new zoning, as is evident from his earlier statement that while the proposed urbanisation of the area will significantly change its current open rural landscape character, Auranga will be consistent with the sites being zoned mixed housing, urban zone, with urban expansion envisaged in the PAUP. He also said the proposed
19 Plato v Ashton (1984) 2 NZCPR 191 (CA) at 194 per McMullin J.
20 North Holdings Development Ltd v WGB Investments Ltd [2014] NZHC 670 at [40], citing Mogensen v Portuland Developments Pty Ltd [1983] NSW Conv R 55,116 at 56,856. See also Luxon v Hockey (2005) 5 NZCPR 125 at [35].
urbanisation of the land will inevitably result in the transformation of the sites from a fringe rural area to a mixed density urban residential area. Nevertheless, he said, this is a landscape in transition and is an area designated for urban expansion in the foreseeable future.
[40] The only affidavit in opposition was from Mr Frewin. He said it was a holding affidavit pending liaison with neighbours and expecting to instruct a town planning expert with special reference to traffic issues. Mr Parmenter explained that for costs reasons no town planning expert had subsequently been instructed, which is understandable.
[41] Mr Frewin explained that they bought the land in 2004. They were sent the covenant at the time. They wanted (and still want) peace and quiet in a rural setting. The photographs exhibited to his affidavit give a good sense of the lifestyle block in a rural setting with trees and rural ambience. They are concerned with the combination of loss of rural outlook, people, traffic and noise. Their rural retreat will be lost.
[42] In response to the traffic concern raised in Mr Frewin’s affidavit, Mr Neutze submitted there would be no impact from traffic. The independent commissioners considered traffic effects when authorising the rezoning of the SHA and granting resource consent. The precinct plan shows no physical formed connection between Burberry Road and Bremner Road, so there would be no increase in traffic. Mr Neutze acknowledged that in future there would be a connection – but that will need approval no doubt taking traffic effects into account. In relation to the traffic concern, I am satisfied that modifying the covenant will not substantially injure those opposing.
[43] I am not satisfied, however, on the evidence that the applicants have made out s 317(1)(d). The impairment of views and alteration to the character or ambience of the neighbourhood may well amount to substantial injury.
Should I exercise the Court’s discretion?
[44] I have found that the applicants have established sufficient change under s 317(1)(a) and (b):
(a)the combination of the creation of the SHA, the change of zoning from Rural Plains to a combination of Terrace Housing and Apartment Building, Mixed Housing Urban, Mixed Housing Suburban, and Local Centre zones and establishing the Drury 1 Precinct, and the qualifying development resource consent, give rise to such a change since the covenant was created in 1995 that it is appropriate for the covenant to be modified; and
(b)the continuation in force of the covenant would impede the reasonable use of the burdened land to a different extent from that which could reasonably have been foreseen by the original parties to the covenant at the time it was created in 1995.
[45] Thus, the Court has a discretion in deciding whether to modify or extinguish the covenant. Factors often relevant to the exercise of that discretion include:21
(a)Sanctity of contract.22 This is particularly relevant where the applicant is the original covenantor or where the original covenantee is still the owner of the benefited land.
(b)The expropriation of private property or proprietary rights.23
[46] Mr Neutze emphasised the changes and submitted that time does not stand still and I should exercise the discretion to allow urban development to occur in accordance with HASHAA and the resource consent.
[47] Mr Parmenter submitted that existing property rights and the sanctity of contract should defeat the cynical manoeuvrings of the applicants. He submitted that the applicants’ conduct was a relevant factor, relying by analogy on the relevance of the conduct of the parties in s 324 (wrongly placed structures), s 329 (landlocked land), and s 335 (trees and unauthorised improvements) and Macken v Jervis.24 Although
21 Stonehill Trustee Ltd v New Zealand Industrial Park Ltd [2018] NZHC 2938 at [27], citing Hinde McMorland and Sim Land Law in New Zealand (online looseleaf ed, LexisNexis) at [17.036].
22 Harnden v Collins [2010] 2 NZLR 273 (HC) at [24].
23 At [24].
24 Macken v Jervis [2014] NZHC 3408 at [35].
those statutory provisions have their own statutory considerations, and Macken v Jervis is a quite different case, I accept that the conduct of the parties may be a relevant factor in the exercise of the discretion under s 317.
[48] In North Holdings Katz J said that the one issue that gave her cause for concern was that it was the applicant itself which sought the plan change.25 Katz J concluded, however, that that should not weigh against the granting of relief on the facts of that case.
[49] Here, the planning applications in 2016 were made by KDCL but the applicants acknowledge that, in conjunction with KDCL, they wish to have their properties developed. They did not explain the detail of their arrangement with KDCL.
[50] In this case, sanctity of contract and the expropriation of private property rights, as registered on titles under the Torrens system, are important factors to be weighed in the balance. None of the applicants is an original covenantor but each applicant must be taken to have purchased with notice of the covenant. Moreover, each applicant purchased after the 2013 proposed zoning change. Three of them purchased in 2016 after the SHA over the properties had been gazetted.26 L & W Rising Ltd purchased soon after the planning applications had been lodged in May 2016. Burberry Road 32 Ltd purchased after the August 2016 rezoning and resource consent decision on the planning applications. There was no suggestion that they had purchased other than in anticipation of urban development and taking the risk that such development may not be able to proceed. They purchased with their eyes open.
[51] There is, however, also no suggestion that the applicants have acted unlawfully or in a way that disentitles them to relief. They have simply taken the risk that relief would not be granted.
[52] Frewin/Duggan were not original covenantees but they purchased 5 Burberry Road in 2004 with knowledge of the covenant, when the area was still zoned Rural
25 North Holdings Development Ltd v WGB Investments Ltd [2014] NZHC 670 at [62].
26 Barfilon Investment Ltd had already purchased in 2014.
Plains and well before potential urban development was notified. The evidence did not indicate when Guthrie purchased 18 Burberry Road, but they have been on the title since at least 1998.
[53] The decision of the independent commissioners states that no submissions opposed the planning applications in 2016. The parties opposing this application could have participated in the planning applications although their private property rights would not have been relevant in that Council planning process.
[54] As indicated, compensation is not claimed in this case. It would not address the concerns of those opposing. This is not a case where compensation is a means of diminishing the adverse effects of modification.
[55] While the applicants are constrained by the covenants, the remainder of the properties covered by the large Auranga project to the north are not. Mr Parmenter submitted that declining to modify the covenant to exclude the applicants’ four properties would have a de minimis effect on the larger development. There was no suggestion that the remainder of the Auranga project could not proceed if the covenant is not modified. But this cuts both ways. If the Auranga project is to proceed in any event, with its inevitable effect on the neighbourhood, the benefit to Frewin/Duggan and Guthrie of declining relief is reduced. The applicants’ properties would at least be a modest buffer between their properties and the Auranga project development to the north.
[56] Weighing these various factors, I conclude that I should exercise the discretion to modify the covenant. The significance of the changes I have referred to, reflecting the public interest in housing development in the SHA, and the inevitability of development in some form, outweigh the important interest in maintaining the property right in the covenant, even taking into account that the applicants have proceeded with their eyes open.
Form of order
[57] The parties agreed that, in the event a modification is to be made, the appropriate form of order would be simply to remove the applicants’ four properties from the covenant. This would leave other issues between other parties for the future.
[58] In the circumstances, the applicants accepted that, if successful, costs should lie where they fall.
Result
[59] There will be an order that Land Covenant C892866.1 be modified so that it no longer applies to the following four properties:
(a)an estate in fee simple in Lot 9 on Deposited Plan 166291, as comprised in Unique Identifier NA100D/690;
(b)an estate in fee simple in Lot 1 on Deposited Plan 376355, as comprised in Unique Identifier 307027;
(c)an estate in fee simple in Lot 10 on Deposited Plan 166291, as comprised in Unique Identifier NA100D/691; and
(d)an estate in fee simple in Lot 2 on Deposited Plan 376355, as comprised in Unique Identifier 307028.
[60]There is no order as to costs.
Gault J
Solicitors / Counsel:
Mr D J Neutze and Ms C A Robertson, Brookfields, Auckland Ms J G Goodyer, Ellis Gould, Auckland
Mr R O Parmenter, Barrister, Auckland
Mr G M Bilkey (interested parties Frewin/Duggan and Guthrie instructing solicitor), Graham & Co., Solicitors, Auckland
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