Young v Stolten - [2009] NZCA 264

IN THE COURT OF APPEAL OF NEW ZEALAND
CA535/2008
[2009] NZCA 264
BETWEENSHANG YOUNG

Appellant

ANDMARK RANDALL STOLTEN

First Respondent
ANDELIZABETH MARY STOLTEN

Second Respondent
ANDFREDERICK BRIAN WORRAL

Third Respondent
ANDCLIFFORD DIXON

Fourth Respondent
ANDPAMELA DIXON

Fifth Respondent
ANDCOLIN HODGES

Sixth Respondent
ANDLYNN HODGES

Seventh Respondent
ANDANDREW COOKE

Eighth Respondent
ANDKAREN COOKE

Ninth Respondent
ANDBRIAN WILTSHIRE

Tenth Respondent
ANDWILLIAM BASON

Eleventh Respondent
ANDGLENIS BASON

Twelfth Respondent
ANDFRANCIS COOTE

Thirteenth Respondent

Hearing:5 May 2009

Court:Hammond, Chambers and Baragwanath JJ
Counsel:R P Thomas for Appellant

B P Henry for Respondents

Judgment:24 June 2009 at 4 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.
BThe appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1]       Associate Judge Faire entered summary judgment against the appellant, Mr Young, and enjoined him from building, or making any further preparation to build on certain land in a subdivision at Howick, Auckland: HC AK CIV 2008-404-001497 8 August 2008. Mr Young now appeals to this Court against that judgment.
[2]       The central issue in the case concerns the interpretation and application of certain restrictive covenants contained within a Memorandum of Transfer. For the appellant, Mr Thomas submits that the Judge misconstrued the relevant covenants and wrongly granted the injunction. Mr Henry submits that the Judge’s interpretation was correct, as was the relief afforded by him.
[3]       As is routinely the case with conveyancing disputes, this particular case can only be understood in terms of its own facts, to which we now turn.
The facts
[4]       The essential facts in this proceeding are not in dispute.
[5]       The litigants are all owners of property in a subdivision in Howick, Auckland. The second to thirteenth respondents are the owners of Lots 1, 2, 3, 11, 12, 13, 15, 16, 17, 18, 19 and 20 on Deposited Plan 160921. The first respondent’s land consists of a house and section and is Lot 1 on Deposited Plan 187531.
[6]       The appellant’s land is a bare section and is Lot 2 on DP 187531. Lots 1 and 2 on DP 187531 are a subdivision of Lot 10 on DP 160921.
[7]       The intent of the DP 160921 subdivision was to create sections of equal size, with a single home on each. The intention behind the scheme of development is recorded in Recital B to the critical Memorandum of Transfer 871394.2:
It is the Transferor’s intention that land described in the First Schedule hereto shall be subject to a general scheme applicable to and for the benefit of all the land described in the First Schedule and that the owner or occupier for the time being of the land described in the First Schedule should be bound by the stipulations and restrictions set out in the Third Schedule hereto and that the respective owners and occupiers for the time being of any of the land described in the First Schedule may be able 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 Young v Stolten

Details

AGLC: Young v Stolten [2009] NZCA 264
Case: [2009] NZCA 264
Decision Date: 24 June 2009

CaseChat Overview and Summary

Young v Stolten was an appeal against the granting of summary judgment in favour of the Stolten family. The Stoltens, owners of property in a subdivision in Howick, Auckland, sought an injunction to prevent the appellant, Mr Young, from building on his section of land in breach of restrictive covenants. The appeal focused on the interpretation and application of the restrictive covenants contained within a Memorandum of Transfer. The Court of Appeal found that the Associate Judge correctly interpreted the covenants and rightly granted the injunction.

The Court of Appeal emphasised that the dispute could only be understood in terms of its own facts. The key issue was whether the restrictive covenants bound the appellant's land. The appellant argued that the scheme of development did not impose mutuality of obligations on all lots, while the respondents argued that the covenants applied to all lots. The Court of Appeal found that the Memorandum of Transfer created a general scheme applicable to all lots in the subdivision, and that the appellant's lot was subject to the scheme. The Court of Appeal also found that the Associate Judge was correct in ordering an injunction, as damages were not a better alternative remedy in this case.

The appeal was dismissed, and the appellant was ordered to pay the respondents' costs for a standard appeal on a band A basis and usual disbursements.

Orders