Taylor v Small - [2020] NZHC 2023

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-864

[2020] NZHC 2023

UNDER the Declaratory Judgments Act 1908

IN THE MATTER

of an application for a Declaratory Judgment

BETWEEN

WILLIAM PETER TAYLOR AND SUSAN MARY TAYLOR

First Plaintiffs (Discontinued)

SCOTT KERRY JACKSON AND SARAH ANNE JACKSON
Second Plaintiffs

RICHARD DONALD JOHNSTON AND RACHEL ELIZABETH JOHNSTON
Third Plaintiffs (Discontinued)

TREVOR FRANK SAVORY AND SALLIE ANN RENWICK

Fourth Plaintiffs

AND

GEOFFREY CLEMENT SMALL AND ARIA SMALL

First Defendants

BOMBAY INVESTMENTS LIMITED

Second Defendant

Hearing: 27-28 July 2020

Appearances:

R B Brabant for the Plaintiffs

C B Wilkinson-Smith for First Defendants

Judgment:

11 August 2020

JUDGMENT OF GORDON J

This judgment was delivered by me on 11 August 2020 at 11.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

TAYLOR v SMALL [2020] NZHC 2023 [11 August 2020]

Introduction

[1] The first to fourth plaintiffs and the first defendants, Geoffrey and Aria Small (the Smalls), own rural lifestyle blocks south of Auckland between Ramarama and Bombay.

[2] The Smalls have constructed an equestrian facilities building on their land which they purchased from the first plaintiffs, William and Susan Taylor (the Taylors), in 2013.

[3] The second and fourth plaintiffs (together the plaintiffs), now the only active plaintiffs in the proceeding, say that the equestrian facilities building is in breach of restrictive covenants. They seek a declaration to that effect. They also seek injunctive relief directing the Smalls to alter the equestrian facilities building to the extent necessary to meet the requirements of the covenants; or failing completion of those alterations that they pull down and remove the building. They seek further injunctive relief restraining the Smalls from erecting any farm outbuilding or ancillary building which does not meet the requirements of the restrictive covenants.

[4] In response the Smalls say that the equestrian facilities building is not in breach of the restrictive covenants. A counterclaim seeking an order modifying the restrictive covenants was abandoned at the commencement of the hearing.

Factual background

[5] My judgment of 29 October 2018 (the original High Court judgment) sets out a comprehensive history of the various subdivisions and boundary changes since the first subdivision by the Taylors.1 That background was also summarised by the Court of Appeal in its decision on the appeal from the original High Court judgment.2 I mention only what is necessary background for the purpose of the remaining issues before the Court.

1 Taylor v Small [2018] NZHC 2785 at [7]-[29].
2 Taylor v Small [2019] NZCA 152 at [6]-[15].

[6] In 1994, the Taylors, who at that time owned approximately 73 hectares of farm land at 202 Ingram Road, obtained approval from the then Franklin District Council to subdivide 40 hectares (the Taylor subdivision). By deed dated 15 July 1998 between the Taylors and the then owners of one of the lots in the Taylor subdivision, the parties agreed to restrictive covenants in favour of that lot…

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 Taylor v Small

Details

AGLC: Taylor v Small [2020] NZHC 2023
Case: [2020] NZHC 2023
Decision Date: 11 August 2020

CaseChat Overview and Summary

This case involved an application for a declaration and injunctive relief concerning restrictive covenants on rural lifestyle blocks in the Taylor subdivision, south of Auckland. The Smalls constructed an equestrian facilities building on their property, which the plaintiffs claimed was in breach of the restrictive covenants. The central legal issue was whether the equestrian facilities building complied with the restrictive covenants. The High Court found that the building did not comply with the covenants in two respects: it was not an outbuilding or ancillary building due to the absence of a dwelling house, and it was not in keeping with the dwelling house. The Court also found that the building did not comply with the requirement to be usual and reasonable for the type of rural use of the land. The Court considered various factors in deciding whether to grant injunctive relief, including the conduct of the parties, the nature of the breach, and the effect of the relief on the Smalls. The Court concluded that the relevant factors weighed in favour of granting injunctive relief and made orders requiring the Smalls to modify the equestrian facilities building to comply with the covenants or remove it. The Court also made an order restraining the Smalls from erecting any farm building or ancillary building that did not meet the requirements of the restrictive covenants. The Court reserved costs pending agreement between the parties.

Orders