IN THE COURT OF APPEAL OF NEW ZEALAND
CA535/2008
[2009] NZCA 264BETWEENSHANG YOUNG
Appellant
ANDMARK RANDALL STOLTEN
First RespondentANDELIZABETH MARY STOLTEN
Second RespondentANDFREDERICK BRIAN WORRAL
Third RespondentANDCLIFFORD DIXON
Fourth RespondentANDPAMELA DIXON
Fifth RespondentANDCOLIN HODGES
Sixth RespondentANDLYNN HODGES
Seventh RespondentANDANDREW COOKE
Eighth RespondentANDKAREN COOKE
Ninth RespondentANDBRIAN WILTSHIRE
Tenth RespondentANDWILLIAM BASON
Eleventh RespondentANDGLENIS BASON
Twelfth RespondentANDFRANCIS 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…
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- Young v Stolten [2009] NZCA 264
- Case
- [2009] NZCA 264
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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