The Tier Woods Limited - [2024] NZHC 2130

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2024-425-66

[2024] NZHC 2130

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

BETWEEN

THE TIERS WOODS LIMITED

Applicant

Hearing: On the papers

Appearances:

J E Bayley for Applicant

Judgment:

1 August 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 1 August 2024 at 10.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE THE TIERS WOODS LIMITED [2024] NZHC 2130 [1 August 2024]

The application

[1] The applicant, The Tiers Woods Ltd (TWL), has brought an originating application under ss 316 and 317 of the Property Law Act 2007 (PLA) for the following orders extinguishing easements and covenants on land overlooking Frankton Road in Queenstown and which is being subdivided:

(a)Easement Instrument 10097957.3 shall be extinguished from any land contained within Record of Title 927540 (Otago Registry) (including any record or records of title subsequently issuing therefrom) where that land is to, upon deposit in accordance with a survey plan, transfer/dedicate or vest as road;

(b)Easement Instrument 10449745.27 shall be extinguished from any land contained within Record of Title 927540 (Otago Registry) (including any record or records of title subsequently issuing therefrom) where that land is to, upon deposit in accordance with a survey plan, transfer/dedicate or vest as road;

(c)Easement Instrument 10449745.28 shall be extinguished from any land contained within Record of Title 927540 (Otago Registry) (including any record or records of title subsequently issuing therefrom) where that land is to, upon deposit in accordance with a survey plan, transfer/dedicate or vest as road;

(d)Covenant Instrument 11400022.13 shall be extinguished from any land contained within Record of Title 927540 (Otago Registry) (including any record or records of title subsequently issuing therefrom) where that land is to, upon deposit in accordance with a survey plan, transfer/dedicate or vest as road;

Procedural history

[2] The application was made without notice and leave was sought for the proceedings to be brought by way of originating application.

[3] On 18 June 2024, Harland J granted leave for the proceedings to be brought as an originating application. However, Harland J sought further information before considering the proposal to proceed without notice being served on the 53 individuals or entities who were registered proprietors of the land that was affected by the application.

[4] In light of the further information received from the applicant and the clarification regarding the scope of the application, the Court confirmed the application could proceed without notice and I am now dealing with it on that basis.

The grounds for the application

[5] The application is supported by affidavit evidence from Mr William Taylor, the director of the applicant company, TWL. He explains that TWL is currently undertaking a residential subdivision of land which is accessed from 658 Frankton Road, Queenstown.

[6] The subdivision has proceeded in stages, with different companies that Mr Taylor has an interest…

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 Tier Woods Limited

Details

AGLC: The Tier Woods Limited [2024] NZHC 2130
Case: [2024] NZHC 2130
Decision Date: 1 August 2024

CaseChat Overview and Summary

The Tiers Woods Limited applied to the High Court of New Zealand, Invercargill Registry, for orders to extinguish certain easements and covenants over land in Queenstown. The applicant, The Tiers Woods Limited (TWL), sought to extinguish these encumbrances to facilitate the subdivision of land that is to vest as a road. The application was made without notice and was brought under sections 316 and 317 of the Property Law Act 2007. The legal issues centered on whether the easements and covenants could be extinguished without causing substantial injury to any person entitled and whether the proposed modification was justified by a relevant change in circumstances.

The court considered that the proposed vesting of the land as a road constituted a relevant change in circumstances under section 317(1)(a)(iii) of the PLA. Given that the land in question would not be used for residential purposes but rather as a road, the easements and covenants would have no sensible application to the road. Furthermore, the court found that the extinguishment of these encumbrances would not substantially injure any person entitled as the owners of the benefitted land would still have the benefit of the easements and covenants in respect of the residential lots. The court noted that there were precedents where similar applications had been granted.

Accordingly, the court granted the application and ordered the extinguishment of the specified easements and covenants from any land that is to vest as road. The court also provided that the orders could be relied upon by any registered proprietor of land contained within the specified record of title and reserved leave to seek further directions or variations if necessary.

Orders