Sunder v Smith - [2025] NZHC 2246

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2024-425-89 [2025] NZHC 2246

UNDER the Property Law Act 2007
IN THE MATTER of an application under s 317 of the Act BETWEEN RAJEEV SUNDER and PUNAM
REKHRAJ
Applicants

ANDCALVIN FRANCIS SMITH, JOANNE MARY O’DONOGHUE SMITH and ROBERT KAHU PARRISH STEWART
First Respondents

ANDDIANE MARY VAN BRANDENBURG and FREDERIKUS PETRUS MARIA VAN BRANDENBURG
Second Respondents

ANDJAMES ANTHONY VON DADELSZEN and REBECCA ISLA VON DADELSZEN
Third Respondents

ANDQUEENSTOWN LAKES DISTRICT COUNCIL
Fourth Respondent

Hearing: 21 July 2025

Appearances: B B Gresson and E M A Downey for Applicants
M J Hammer and A L Davidson for First, Second and Third Respondents
No appearance for Fourth Respondent (abiding)

Judgment: 11 August 2025

JUDGMENT OF OSBORNE J

SUNDER v SMITH [2025] NZHC 2246 [11 August 2025]

Introduction

[1] The applicants, Rajeev Sunder and Punam Rekhraj, apply pursuant to s 317 Property Law Act 2007 (the Act) for orders either extinguishing or modifying a covenant registered against the title to their property at 7 Arrowtown-Lake Hayes Road, Queenstown (No 7). The covenant, established by a Deed of Covenant (Deed), was registered in 1981 and burdens four residential properties being No 7, together with the properties at 5, 9 and 11 Arrowtown-Lake Hayes Road (respectively No 5, No 9 and No 11). The aspect of the covenant of central concern to the applicants restricts each lot owner to erecting only one family dwelling house on the lot and doing so within a defined house site area of the lot.

[2] The applicants, through their family trust, obtained from the Queenstown Lakes District Council (the Council) in January 2022 a resource consent (consent) to subdivide No 7 into three allotments as identified in Table 3 (below at [11]). The consent was subsequently varied in May 2023.

[3] The consent, in conjunction with the Council’s current proposed district plan (PDP), allows there to be on each subdivided lot a primary residential dwelling and a stand-alone secondary unit defined as a “residential flat” of up to 70 m2.

[4] Under the conditions imposed by the Council on the consent, the consent-holder is required to seal the access from the Lake Hayes-Arrowtown Road to the boundary of No 7 before obtaining the issue of a certificate pursuant to s 224(c) Resource Management Act 1991 (RMA).

[5] The consent cannot be given effect to while the covenant prohibits the erection of further buildings on No 7.

[6] The first, second and third respondents (whom I shall refer to in this judgment as the “respondents”) oppose the application. The Council, as the fourth respondent, abides the outcome.

The properties and their subdivision

The original subdivision

[7] Table 1 extracted from the original 1977 subdivision survey plan shows the four subdivided lots. Lot 3 (No 11) comprises 3,064 m2; Lot 4 (No 9): 4,466 m2; Lot 5 (No 7): 3,694 m2; and Lot 6 (No 5): 3,483 m2.

Table 1

[8] There is on each…

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 Sunder v Smith

Details

AGLC: Sunder v Smith [2025] NZHC 2246
Case: [2025] NZHC 2246
Decision Date: 11 August 2025

CaseChat Overview and Summary

In Sunder v Smith, the applicants, Rajeev Sunder and Punam Rekhraj, sought to extinguish or modify a covenant registered against their property at 7 Arrowtown-Lake Hayes Road, Queenstown. The covenant, established in 1981, restricts each lot owner to erecting only one family dwelling house on the lot within a defined house site area. The applicants obtained a resource consent to subdivide their property into three allotments but are unable to implement it due to the covenant. They applied under s 317 of the Property Law Act 2007 for orders either extinguishing or modifying the covenant. The respondents opposed the application, and the Queenstown Lakes District Council abided the outcome.

The court considered whether there had been a change in the character of the neighbourhood or if the continuation of the covenant would impede the reasonable use of the burdened land in a different way or extent from that which could reasonably have been foreseen by the original parties. The court found that the applicants had not established a significant change in the character of the neighbourhood. The court also concluded that the continuation of the covenant would not impede the reasonable use of the burdened land to a different extent from that which could reasonably have been foreseen by the original parties. The application was dismissed, and costs and disbursements were reserved.

Orders