Taylor v Small - [2018] NZHC 2785

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-864

[2018] NZHC 2785

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

SCOTT KERRY JACKSON AND SARAH ANNE JACKSON

Second Plaintiffs

RICHARD DONALD JOHNSTON AND RACHEL ELIZABETH JOHNSTON

Third Plaintiffs

TREVOR FRANK SAVORY AND SALLIE ANN RENWICK

Fourth Plaintiffs

AND

GEOFFREY CLEMMENT SMALL AND ARIA SMALL

First Defendants

…./cont

Hearing: 17 September 2018

Appearances:

R Brabant and S Darroch for the Plaintiffs A Simkiss for the First Defendant

No appearance by or on behalf of the Second Defendant

Judgment:

29 October 2018

JUDGMENT OF GORDON J

This judgment was delivered by me on 29 October 2018 at 4.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

TAYLOR v SMALL [2018] NZHC 2785 [29 October 2018]

BOMBAY INVESTMENTS LIMITED
Second Defendant

Introduction

[1] The plaintiffs bring an application under the Declaratory Judgments Act 1908 in relation to the interpretation of restrictive covenants. In particular, the plaintiffs seek declarations that:

(a)Only three dwelling houses may be built on the land that the first defendants, the Smalls, purchased from the first plaintiffs, the Taylors, in 2013 (the Smalls’ land); and

(b)The equestrian facilities building (the building), which the Smalls have already constructed on that land, is in breach of the terms of the restrictive covenants.

[2] The plaintiffs further seek injunctions restraining the Smalls (or subsequent purchasers from them) from constructing any more than three dwelling houses on the Smalls’ land and ordering the Smalls to remove the building.

[3] The plaintiffs’ application is opposed by the Smalls and by the second defendant, Bombay Investments Ltd. After purchasing the Smalls’ land from the Taylors, the Smalls subdivided the land into seven lots (the Small subdivision). Bombay Investments Ltd purchased one of those lots.

[4] The Smalls also say that the plaintiffs are estopped from asserting their interpretation of the restrictive covenants, both in respect of the number of new dwelling houses that may be built on the Smalls’ land and whether the covenants permit the construction of the building.

[5] As no relief is sought against Bombay Investments Ltd, that company, having filed a notice of appearance reserving rights, has not taken part in the proceeding.

[6] Interested parties, Fei Wang and Yao Feng Qi (the Wang/Qis), in their notice of opposition, oppose the development of the Smalls’ land and the Smalls “further subdividing it”. They also oppose the plaintiffs’ application as it relates to the interpretation of the restrictive covenants (in relation to the number of dwelling houses

that may be built on the Smalls’ land) to the extent it may affect their property rights. The Wang/Qis did not take part in the proceeding beyond filing a notice of opposition.

The Taylor subdivisions

[7] The Taylors were the owners of 40 hectares of land in Ingram Road, Ramarama, south of Auckland.…

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 [2018] NZHC 2785
Case: [2018] NZHC 2785
Decision Date: 29 October 2018

CaseChat Overview and Summary

This is an application under the Declaratory Judgments Act 1908 for interpretation of restrictive covenants. The plaintiffs sought declarations that only three new dwelling houses may be built on the land purchased by the Smalls and that the equestrian facilities building is in breach of the restrictive covenants. The plaintiffs further sought injunctions restraining the Smalls from constructing more than three dwelling houses on the land and ordering the Smalls to remove the building. The Smalls opposed the application. The Smalls further argued that the plaintiffs were estopped from enforcing the restrictive covenants. The court first considered the approach to the interpretation of restrictive covenants and held that registered documents should be construed without regard to extrinsic evidence which is particular to the original parties and is not apparent on the face of the register. The court held that a single dwelling house may be built on any part of the land purchased by the Smalls. The court further held that the building was in breach of the restrictive covenants, but only in two respects: there was not (yet) a dwelling house associated with the building and, as a result, the building could not be said to be “in keeping” with the dwelling house. The court rejected the defence of estoppel on the basis that none of the plaintiffs had communicated to the Smalls that they intended to enforce the restrictive covenants. The court declined to make the declaration sought in the first cause of action and dismissed the applications for injunctions in the third and fourth causes of action. The court held that the Smalls were entitled to costs.

Orders