Webster v Doak - [2017] NZCA 396

IN THE COURT OF APPEAL OF NEW ZEALAND

CA438/2016
[2017] NZCA 396

BETWEEN	CAROL LILLIAN WEBSTER, STUART GORDON WEBSTER AND HERCUS KING TRUSTEES LIMITED Appellants
AND	WILLIAM NEVILLE DOAK First Respondent CHILDREN'S HEALTH CAMPS - THE NEW ZEALAND FOUNDATION FOR CHILD AND FAMILY HEALTH AND DEVELOPMENT KNOWN AS STAND CHILDREN'S SERVICES Second Respondent BRETT DAVIS ROLLANDER, KIRSTY-ANNE ROLLANDER, VAREENA STEVENS, JILL BURKE AND MONICA YOUNG Third Respondents PATRICK KAY HUFF Fourth Respondent STEPHEN JOHN MACKLIN AND ADELE MARGARET MACKLIN Fifth Respondents ROBERT HAROLD WYLIE WAKELIN, JOANNE ISABELL WAKELIN AND BURROWES TRUSTEE SERVICES (2013) LIMITED Sixth Respondents NEIL TREVOR TURNER, JEAN ELIZABETH TURNER AND KAPITI TRUST COMPANY LIMITED Seventh Respondents CHRISTOPHER JOHN LAMAIN AND CAROL ANN LAMAIN Eighth Respondents KAPITI COAST DISTRICT COUNCIL Ninth Respondent
Hearing:	26 June 2017
Court:	Brown, Dobson and Brewer JJ
Counsel:	J Maassen and N Jessen for Appellants P S J Withnall and S P R Conway for Second Respondent D G Randal and A E OʼConnor for Third Respondent
Judgment:	8 September 2017 at 12.30 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe appellants must pay the second respondent costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

This appeal concerns the desire of the second respondent (Children’s Health Camps ‑ the New Zealand Foundation for Child and Family Health and Development known as Stand Children’s Services (Stand)) to use a building on land it owns in Paraparaumu (the land) for the purposes of establishing a “Children’s Village” (a children’s health camp).
In late 2015, Stand sought a declaration in the High Court to the effect that a restrictive covenant registered against the title to the land will not prevent it using the building for a children’s health camp. The appellants, together with six other immediate neighbours of the land, opposed the granting of the declaration. Simon France J made the declaration sought.[1] The appellants appeal his decision.[2]

The covenant

[1]Doak v Rollander [2016] NZHC 1741.

[2]The other neighbours who were defendants in the High Court are listed as the third to eighth respondents in the appellants’ notice of appeal. These respondents took no part in the appeal.

The restrictive covenant provides:
No buildings may be constructed or used for commercial or industrial use unless such use is a predominant use under the code of ordinances of the Kapiti Coast District Council for such lot.

The issue

The issue for Simon France J was, and is for us, whether the use of the building on the land as a children’s health camp would be a commercial use that is prohibited by the restrictive covenant.

The intended use

We adopt Simon France J’s description of the intended use of the building:[3]
[3]Doak v Rollander, above n 1.
[6] The site would have children for 11 months of the year, there being a four week shut down over the Christmas/New Year period. It is anticipated there…

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.

Keep reading for free

Create a free CaseChat account to read Webster v Doak and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZCA 396
Decision Date: 8 September 2017 at 12.30 pm

CaseChat Overview and Summary

This appeal concerns the desire of the second respondent (Stand) to use a building on its land in Paraparaumu for the purposes of establishing a “Children’s Village” (a children’s health camp). In late 2015, Stand sought a declaration in the High Court to the effect that a restrictive covenant registered against the title to the land will not prevent it using the building for a children’s health camp. The appellants, together with six other immediate neighbours of the land, opposed the granting of the declaration. Simon France J made the declaration sought. The appellants appeal his decision. The issue for Simon France J was, and is for the Court, whether the use of the building on the land as a children’s health camp would be a commercial use that is prohibited by the restrictive covenant. The Court accepted that the covenant was to be given its ordinary meaning. The first part of that is to ask whether the use in issue is commercial or industrial. If it is not, then the covenant does not apply. If it is, then the second part is to see whether the use is authorised as a predominant use by the Kāpiti Coast District Council Code of Ordinances. The Court found that the use of the building as a children’s health camp would not be a commercial use within the meaning of the covenant. The proposed use was one of providing accommodation and therapeutic services to children and housing some of the necessary administrative operations that go along with that. The Court did not see that this could be characterised as being engaged in commerce for profit. The appeal is dismissed. The appellants must pay the second respondent costs for a standard appeal on a band A basis and usual disbursements.

Orders