Re Templeton Pegasus Ltd

[2022] NZHC 424

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-30

[2022] NZHC 424

UNDER

Sections 316 and 317 Property Law Act 2007 and Parts 7 and 19 High Court Rules

2016

IN THE MATTER

of an application for an order by TEMPLETON PEGASUS LIMITED that

covenants be extinguished under s 317 of the Property Law Act 2007

EX PARTE

TEMPLETON PEGASUS LIMITED

Applicant

Hearing:	On the papers
Appearances:	S A Barker and O C Gascoigne for Appellant C Carranceja for Waimakariri District Council
Judgment:	10 March 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 10 March 2022 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE TEMPLETON PEGASUS LIMITED [2022] NZHC 424 [10 March 2022]

[1]This is an application for orders:

(a)extinguishing the land covenants created by easement instrument 8816447.1 dated 25 August 2011 (the Covenants) from parts of lot 35 and 36 DP 417549, that on the applicant’s intended subdivision will become lots 8-10 on Land Transfer Plan 562584, pursuant to s 317 of the Property Law Act 2007;

(b)directing that within five working days of the applicant providing to the Registrar-General of Land a copy of the sealed order extinguishing the Covenants, that the Registrar-General of Land shall, pursuant to s 318 of the Property Law Act 2007, cause the covenants to be extinguished.

[2]        The matter was due to be called before the Duty Judge on 14 March 2022. However, by memorandum, the parties advise that they have conferred and now present a joint position to assist the Court in determining the application.

[3]        The background to the application is already set out in the judgment of Associate Judge Paulsen, dated 11 February 2022.1 As directed by Associate Judge Paulsen the application has now been served on the Council and it has no objection to the orders being made. From its perspective, the Covenants have no meaningful application to lots 8-10 on Land Transfer Plan 562584 in respect of which the Council has provided consent to be vested in it as road.

[4]        The applicant has also provided a detailed memorandum of counsel in support of the application setting out why it is appropriate to grant the application. It is sufficient to say that I accept vesting of the proposed lots in the Council without the Covenants will not cause any prejudice to neighbouring land owners with the benefits of the Covenants. The purpose of the Covenants are not contravened by the lots being used as roading as intended. I am also satisfied that the relevant considerations under s 317 support the grant of the application.

[5]Accordingly, I make the orders as set out at [1] above on the grounds that:

1 Re Templeton Pegasus Ltd [2022] NZHC 161 at [3]-[8].

(a)the confined, ancillary utility use of lots 8-10 necessary to serve the particular development, which requires them to be vested in the Council, means the Covenants have no  meaningful  application  to lots 8-10 (s 317(1)(a)(i) and (iii)); and

(b)the extinguishment of the covenants will not substantially injure any person entitled, because lots 8-10 are not capable of supporting any residential  development  to   which   the   Covenants   would   apply (s 317(1)(d)).

[6]The telephone conference on 14 March 2022 is vacated.

Solicitors:
Buddle Findlay, Wellington