The Grange Park Limited - [2023] NZHC 396

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-280

[2023] NZHC 396

IN THE MATTER of Part 19 High Court Rules 2016 and ss 316 and 317 of the Property Law Act 2007

AND IN THE MATTER

of an application to extinguish a covenant

BETWEEN

THE GRANGE PARK LIMITED

Applicant

Hearing: On the papers

Appearances:

R O Parmenter for Applicant

Judgment:

3 March 2023

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 3 March 2023 at 3:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Winston Wang & Associates, Auckland Counsel: R O Parmenter, Auckland

THE GRANGE PARK LIMITED [2023] NZHC 396 [3 March 2023]

[1]The Grange Park Limited (Grange) applies without notice for:

(a)Leave to commence this proceeding by originating application; and

(b)An order that covenant 11728484.3 is extinguished under s 317(1)(d) of the Property Law Act 2007.

Factual background

[2] The following factual background is taken largely from a helpful memorandum filed by counsel.

[3] Grange is the developer of land formerly being the Grange Golf Club in Papatoetoe. It agreed to sell all 12 lots of Stage 1 of the development to New Dreamland Development Limited (Dreamland). Under the agreement to sell and a variation of that agreement, Grange agreed to build a road to service the rear of the Stage 1 lots.

[4] Grange’s obligations to build the road were recorded in the covenant with Dreamland as the covenantee, which covenant burdens Grange’s residual lands. Essentially, the covenant required Grange to build the road and to vest it in Auckland Council.

[5] While the road was being built, Dreamland subdivided its land further and sold some of the resulting lots. What that meant was that instead of Dreamland being the only benefitting party under the covenant, all these other purchasers (and their mortgagees) acquired the same benefit because the benefit of the covenant flowed down to the resulting titles.

[6] Grange built the road. There was an argument with Dreamland about whether Grange’s obligation included the installation of a gas line, but that has been settled, so all that remains is for the road to be vested in Auckland Council by way of the deposit of plan LT: 554435 with Land Information New Zealand (LINZ). When the road is vested the effect of the covenant will be spent.

[7] In settlement of a related dispute, Grange and Dreamland agreed that Grange would vest the road and Dreamland would assist with the removal of the covenant.

[8] The vesting could not take place without taking into account the covenant. Options are:

(a)Either all the parties benefiting from covenant consented to the vesting/deposit of the plan (with appropriate documentation); or

(b)The covenant needed to be extinguished by the consent of all the parties benefitting; or

(c)By Court order.

[9] Trying to get the benefitting parties’ consent to the vesting has been difficult and neither Grange nor Dreamland can see…

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 The Grange Park Limited

Details

AGLC: The Grange Park Limited [2023] NZHC 396
Case: [2023] NZHC 396
Decision Date: 3 March 2023

CaseChat Overview and Summary

The Grange Park Limited, the developer of the Grange Golf Club land in Papatoetoe, applied to the High Court for leave to commence a proceeding by originating application to extinguish a covenant. The covenant, which required the developer to build a road to service the rear of Stage 1 lots and vest it in Auckland Council, had been completed. However, the vesting of the road could not proceed without the removal of the covenant. The developer and the original covenantee, New Dreamland Development Limited, had agreed that the developer should make the application, and New Dreamland would consent provided the covenant would not be extinguished without the vesting of the road. The developer sought an order to extinguish the covenant under section 317(1)(d) of the Property Law Act 2007. The legal issues were whether the proceeding could be commenced by originating application and whether the application should proceed without notice. The court found that it was in the interests of justice for the proceeding to be commenced by originating application and that it should proceed without notice to all benefitting parties since the benefit of the covenant was spent, and there was no harm to be occasioned to any party by its extinguishment. The court was also satisfied that the requirements of section 317(1)(d) were met since the benefit of the covenant was spent, the benefitting parties had no interest in the covenant or its continued existence, and the original sole benefitting party consented to an order extinguishing the covenant on the condition that any order extinguishing the covenant would only be effective if it was immediately followed by registration of the vesting of the road. The court granted leave to commence the proceeding by way of originating application and ordered that the covenant was extinguished, conditional upon its being registered with Land Information New Zealand in the same dealing as the deposit of the plan and that the costs lay where they fell.

Orders