Repotane Trust Limited v Hart - [2024] NZHC 3655

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2023-419-278 [2024] NZHC 3655

IN THE MATTER of an Enforcement of Covenant in Easement Instrument 10104470.2

BETWEEN

REPOTANE TRUST LIMITED

Plaintiff

AND

SHEREE ANN HART, MATTHEW NORMAN HART, and BR LEGAL TRUSTEE COMPANY LIMITED as

trustees of the HART FAMILY TRUST NO.2

Defendants

Hearing: 22, 23 and 24 April 2024

Appearances:

P Cornegé and A Cox for the Plaintiff T Braun and J Perry for the Defendants

Judgment:

3 December 2024

JUDGMENT OF ROBINSON J

This judgment was delivered by me on 3 December 2024 at 4:30 pm pursuant to Rule 11.5

of the High Court Rules

Registrar/Deputy Registrar

Solicitors/counsel: McCaw Lewis, Hamilton BBL Lawyers, Hamilton P Cornegé, Hamilton

REPOTANE TRUST LIMITED v HART & ORS [2024] NZHC 3655 [3 December 2024]

Introduction and background [1]

The facts [8]

Subdivision [8]

The covenant  [11]
420A  [14]
The agreement  [25]
Communications about the designs/covenant  [26]
The Harts seek Ms Waddell’s consent  [31]
Ms Hart sends Ms Waddell the plans  [32]
Would the Harts’ home be “boxy”? – Expert evidence  [58]

The law [66]

Interpretation [66]
Unreasonably withholding consent [68]

What were Repotane’s reasons for withholding consent? [71]

Did Ms Waddell unreasonably withhold consent?  [73]
Case law  [73]
English authorities  [76]
Submissions  [84]

Discussion [88]

Counterclaims [97]

Result [102]
Costs [104]

Introduction and background

[1] In 1978, Andrea Waddell’s parents purchased a block of land at 420 Pencarrow Road, Tamahere, Hamilton. They operated it as a family farm. The area surrounding the property has developed and changed since then, but it has always been special to Ms Waddell.

[2] When her father died in 2001, she moved back to the property and into the family home. She has lived there ever since. Ms Waddell has renovated the home, but its footprint remains essentially as it was when her parents lived there. It has expansive views of the Waikato River along the southern boundary.

[3] Ms Waddell is the sole director and shareholder of the plaintiff, Repotane Trust Limited (Repotane). She is also the sole director and shareholder of Repotane Investments Limited (RIL) which purchased the property from her father’s estate in August 2002. By that time the property had largely been sold off. All that remained was approximately 10 acres with the family home.

[4] Through RIL and Repotane, Ms Waddell arranged to subdivide the property further, selling off two parcels of land. Each of these was originally a paddock on either side of the driveway which Ms Waddell/RIL had previously grazed or leased to neighbours. They became 420A and 420B Pencarrow Road (420A and 420B respectively).

[5] When the property was subdivided in 2015, Ms Waddell arranged for restrictive covenants to be registered on the titles of each of the two new sections, for the benefit of the land next door to be retained by Repotane (Lot 2). The covenant provides:
3. [The covenantors are] not to construct any dwelling on [420A and 420B]…

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: [2024] NZHC 3655
Decision Date: 3 December 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Repotane Trust Limited, represented by Ms Andrea Waddell, filed a lawsuit against the Harts, seeking an order to prevent the Harts from constructing a dwelling on their purchased land at 420A Pencarrow Road, Tamahere, Hamilton, without Repotane's consent. The case hinged on a restrictive covenant registered on the title of 420A, which required the Harts to obtain Repotane's written approval for the plans and colours of any dwelling to be constructed. The Harts, in turn, counterclaimed that Repotane had unreasonably withheld consent.

The legal issues in this case were whether Repotane unreasonably withheld consent to the Harts' architectural plans and whether the Harts could proceed with construction despite Repotane's refusal to approve the plans.

The court found that the covenant was intended to give Repotane some control over the aesthetics of any dwelling built on 420A. However, the court emphasized that a covenantee cannot unreasonably withhold consent based solely on subjective taste. The court held that reasonableness must be assessed objectively, considering what a hypothetically reasonable covenantee would find acceptable. The court concluded that Repotane unreasonably withheld consent because Ms Waddell's objections were based on her personal aesthetic preferences rather than any objective standard. The court dismissed Repotane's claim and granted the Harts permission to proceed with construction under section 313(1) of the Property Law Act 2007. The Harts' claims for damages were dismissed as the evidence did not support the alleged losses. The defendants were awarded costs.

Orders