Wilkinson v Campbell - [2020] NZHC 159

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-319

[2020] NZHC 159

UNDER Sections 316 and 317 of the Property Law Act 2007

BETWEEN

WILLIAM TREVOR WILKINSON

Applicant

AND

DOUGLAS ROSS CAMPBELL AND CAROLYN JOAN O’MAHONY

First Respondents

ANDREW WILLIAM SPENCER, LINDA CAROL SPENCER-BROOME, RICHARD GRAHAM SPENCER AND STEPHEN
TURNER SPENCER
Second Respondents

PETER FRANCIS CLARK, FRANCES ELIZABETH CLARK AND KENNETH IAN MACKRELL

Third Respondents

SIMON OLIVER COOKE-WILLIS AND PRUDENCE LOUISE COOKE-WILLIS
Fourth Respondents

PAUL RICHARD WEBB AND SANDRA MARY WEBB

Fifth Respondents

KAREN CAMP AND TIMOTHY JOHN CAMP

Sixth Respondents

Hearing: 12 February 2020

Appearances:

P R W Chisnall and C L F Samson for Applicant

Judgment:

13 February 2020

WILKINSON v CAMPBELL AND O’MAHONY [2020] NZHC 159 [13 February 2020]

JUDGMENT OF CLARK J

Introduction

[1] The applicant seeks an order to modify a covenant (the covenant) under ss 316 and 317 of the Property Law Act 2007 (the Act).

[2] The covenant burdens the applicant's property at 17 Oratia Street, Waikanae Beach, Waikanae (more particularly described as Lot 64 on Deposited Plan 45393 and comprised in certificate of title WN23D/909) (the property).

[3] The covenant benefits lots 61, 70, 71, 72, 79, 80, 81 and 82 on Deposited Plan 45393 (the Lots). The Lots are owned by the respondents to this application.

[4] The proceeding has been served on each of the respondent groups. The proceeding has also been served on the Kapiti Coast District Council in accordance with s 316(3) of the Act.

[5] There is no opposition to the application which proceeded by way of formal proof.

Background

[6] The covenant limits any building on the property to a single storey not exceeding 17 feet (5.18m) above ground level.

[7] In 1997, the previous owner of the property extended the house on the property (the house) by adding a second storey to part of the house. The extension complied with all Kapiti Coast District Council rules and requirements but it did not comply with the covenant. The extension stands at 6.34m high at its highest point, 116cm taller than permitted by the covenant.

[8] The applicant purchased the property in January 2012, unaware the house exceeded the height permitted by the covenant. The applicant discovered this in

January 2016 when he attempted to sell the property. The contract was cancelled on the basis title was not approved as the house was in breach of the covenant.

[9] Seven of eight of the affected Lots were purchased after the house was extended, including two of the Lots that were purchased by the fifth respondents in March 2019, with knowledge the house exceeds the permitted height and that this application was on foot.

[10] The applicant is unlikely to be able to sell the property while the house is in breach of the covenant. He seeks to regularise the house with the covenant to allow the house to remain as it stands, and to avoid having to…

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 Wilkinson v Campbell

Details

AGLC: Wilkinson v Campbell [2020] NZHC 159
Case: [2020] NZHC 159
Decision Date: 13 February 2020

CaseChat Overview and Summary

William Trevor Wilkinson applied to the High Court of New Zealand for an order to modify a covenant that restricts the height of any building on his property at 17 Oratia Street, Waikanae Beach, Waikanae. The covenant benefits the respondents' properties. The applicant purchased the property in 2012 and was unaware of the covenant until 2016 when the house exceeded the height permitted by the covenant. The applicant seeks to regularise the house with the covenant to allow the house to remain as it stands and avoid costly renovations. The second to sixth respondents consented to the proposed modification, and the first respondents did not object. The applicant proposed wording for the modification of the covenant, which the respondents had an opportunity to comment on.

The legal issues in this case were whether the Court could modify the covenant under sections 316 and 317 of the Property Law Act 2007, and if so, whether the modification would substantially injure any entitled person. The Court held that the modification would not substantially injure any entitled person, as the house exceeded the height permitted to a limited extent only and did not significantly impact the outlook from any of the respondents' properties. The majority of the respondent groups' properties were not directly proximate to the house, and seven of the eight Lots were purchased after the extension had been built. The Court also found that the first respondents had waived the right to the covenant as they had been aware of the breach since 2016 but had taken no steps to enforce the covenant.

The Court concluded that the modification of the covenant would not set a materially adverse precedent, as the applicant had no knowledge of the breach, did not create the breach, and the modification sought would simply regularise the position that has existed for 23 years. The Court further held that no party had opposed the application or sought compensation or costs, and therefore no order for compensation was warranted. The Court modified the covenant in the terms set out in the order annexed to this judgment, allowing the existing dwelling to remain as it stands, with certain exceptions and restrictions.

Orders