Re Yoursection Ltd - [2019] NZHC 1825

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-396

[2019] NZHC 1825

IN THE MATTER OF Part 19 of the High Court Rules and ss 316 and 317 Property Law Act 2007

AND

BETWEEN

An application by YOURSECTION

LIMITED for an order extinguishing an easement

Applicant

Hearing: On the papers and a telephone conference on 25 July 2019

Counsel:

J E Bayley for the Applicant

Judgment:

31 July 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 31 July 2019 at 11.00am pursuant to rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 31 July 2019

Re YOURSECTION LIMITED [2019] NZHC 1825 [31 July 2019].

[1] The applicant seeks to extinguish a covenant pursuant to ss 316 and 317 of the Property Law Act 2007 (“the Act”).

[2] The applicant seeks to use the originating application procedure and to have the application dealt with, without notice to any other party. Whether those steps are appropriate will turn on the merits of the application.

Background

[3] The applicant is the registered proprietor of land in Halswell, Christchurch contained in Record of Title CB11K/1284 (“the applicant’s title”)

[4] The applicant intends to complete a staged development of its title into residential lots. This will involve part of the applicant’s title vesting in the Christchurch City Council (“the Council”) as reserve and road.

[5] The applicant’s title is subject to “the easement contained in Transfer 75300 to keep drains clear” (“the covenant”). While the title refers to the transfer creating an easement, the applicant referred to the obligation as a “covenant” and I adopt that term in this judgment.

[6] The covenant is more than 110 years old, having been executed in 1907, and provides:

AND the said Thomas Charles Eivers doth hereby for himself his executors administrators and assigns and the tenants and occupiers for the time being of the said land covenant with the said Robert Rainey and John Eccles Ferguson their executors and administrators that he or they will at all times and hereafter keep open and clear from all rubbish weeds and obstructions of all kinds the drains and shown in the said plan running through the said Lot numbered 6 and will keep the said drains clear and in good working order so that the same may act efficiently in draining all the land shown on the said plan intended to be drained thereby.

[7]The applicant seeks the extinguishment of this covenant.

[8]The application is brought on a number of grounds as follows:

(i)that the covenant cannot be enforced;

(ii)that it has become redundant; and

(iii)is that the subdivision is a change of circumstances that warrants the extinguishment of the covenant.

The without notice application

[9] The applicant recognises that the application is brought on a without notice basis. While the applicant’s title still has the “burden” of the covenant, no other title is recorded as having the benefit of it.

[10] Section 316(3) of…

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 Re Yoursection Ltd

Details

AGLC: Re Yoursection Ltd [2019] NZHC 1825
Case: [2019] NZHC 1825
Decision Date: 31 July 2019

CaseChat Overview and Summary

In this case, the applicant, Yoursection Limited, sought to extinguish an easement pursuant to sections 316 and 317 of the Property Law Act 2007. The applicant intended to complete a staged development of its title into residential lots, which would involve part of the applicant’s title vesting in the Christchurch City Council as reserve and road. The applicant's title was subject to an easement to keep drains clear, executed in 1907. The applicant argued that the covenant could not be enforced, had become redundant, and that the proposed subdivision constituted a change of circumstances warranting the extinguishment of the covenant.

The primary legal issues were whether the easement could be extinguished and whether the application should proceed without notice to the Christchurch City Council. The court considered whether the covenant could be enforced, whether it had become redundant, and whether the proposed subdivision constituted a change of circumstance warranting extinguishment. The court also examined whether the application could proceed without notice to the Council as required by section 316(3) of the Act.

The court found that the covenant could not be enforced as there were no known beneficiaries. However, this was not a decisive factor in the judgment. The court was satisfied that the Christchurch City Council had taken over the maintenance of the drain in question, and therefore, extinguishing the covenant would not substantially affect any person entitled to the benefit of the covenant. Given these findings, the court concluded that the application could proceed without notice to the Council, subject to a condition that a copy of the judgment be provided to the Council to confirm that it had no issue with the orders made or their basis.

The court made the following orders: a copy of the judgment is to be provided to the Christchurch City Council; upon the Council confirming that it would continue to be responsible for the maintenance of the drain subject to the easement, the court would make an order extinguishing the easement; and if the Council wished to be heard on the application or if it were unwilling to give confirmation, a further telephone conference could be sought.

Orders