Cao v Mayall Property Group Limited

[2018] NZHC 225

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-3036 [2018] NZHC 225

BETWEEN

ER XIA CAO, ER SHENG CAO and JUN

WU Applicants

AND

MAYALL PROPERTY GROUP LIMITED First Respondent

AUCKLAND COUNCIL Second Respondent

TOM KROON and NATJE KROON Third Respondents

HUADA INVESTMENT LIMITED Fourth Respondent

ESTUARY CHT LP Fifth Respondent

TSAN FAI LO, CAN RONG LUO and WEI ZHU ZENG

Sixth Respondent

WEIHONG HE Seventh Respondent

MEI WO MICHAEL LAW and IN MAN MANDY LAW LEE

Eighth Respondents

XINHAO DEVELOPMENTS LTD Ninth Respondents

YNG-TSUNG LIN and WEN-I LIN Tenth Respondents

TSUNG KUANG CHUEH and HUI- HSIANG KAO

Eleventh Respondents

ER XIA CAO, ER SHENG CAO and JUN WU v MAYALL PROPERTY GROUP LIMITED [2018] NZHC 225 [23 February 2018]

CHIMBUSCO INTERNATIONAL LTD Twelfth Respondent

Hearing:	22 February 2018
Appearances:	D K Wilson for Applicants
Judgment:	23 February 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 23 February 2018 at 12 noon pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

So licito r s :

Queen City Law, Auckland

[1]      The applicants apply, by way of originating application under s 317 of the

Property Law Act 2007 (PLA), for extinguishment of a covenant created by Transfer

226706.1 registered against the title to land at 443 Ormiston Road, Flat Bush, Auckland, Identifier NA 97A/201 (North Auckland Land Registry).

[2]      The wording of the covenant as relevant to this application is set out in Annexure A to this judgment. Generally, the covenant prevents the servient land being used for trading, or for a purpose other than agricultural.  The covenant also does not allow the keeping of pigs and poultry, and there are various other miscellaneous restrictions as to improvements on the land.

[3]      Pursuant to ss 316 PLA the applicants are entitled to make application because they are persons bound by a restrictive covenant.  Their title is a servient tenement. There are, however, interlocking provisions in the title owned by the applicants and those owned by the respondents so that in some instances the applicants’ title is also dominant.

[4]      The land concerned with the covenant was rural land which in the 1970s was subdivided into smaller lifestyle rural blocks.  The covenant affected all of the titles created.

[5]      The application is advanced on the basis of s 317(1)(a), (b) and (d) of the PLA. Similar applications in respect of properties within the same area have already come before this Court and been granted. Recent examples are Green Land Investments Ltd v GR International Ltd1  and Leading Developments Ltd and Ors v William Robert Blair and Ors.2

[6]      In the Greenland Investments Ltd decision, Woolford J granted the applications for the reasons set out in paragraph [7] of his judgment.  Those reasons were adopted by  Muir  J  in  Leading  Developments.    I  do  the  same  in  this  case  because  the

circumstances are largely the same. Woolford J said:3

1      Green Land Investments Ltd v GR International Ltd [2016] NZHC 213.

2      Leading Developments Ltd and Ors v William Robert Blair and Ors [2016] NZHC 2428.

3      Green Land Investments Ltd v GR International Ltd [2016] NZHC 213

[7]     Having carefully considered the application and supporting documentation, I am satisfied that the application should be granted.  The covenants have by change of circumstances become obsolete and ought to be removed from the servient titles.  In particular, I note the following:

(a)       In 1973, at the time that the covenants were put in place, the land in the plan mentioned in the covenants had a rural zoning.  The general zoning of this land is now residential, but there are some areas of some titles which the Council has zoned for reserve.   The second defendant’s title is now partly reserve.

(b)       The character of the neighbourhood is now residential.  The plaintiff is carrying out a residential subdivision of its land.  Other defendants are also subdividing their land.  The sixth defendant applied to this Court in CIV-2015-404-1993 for extinguishment of the same covenants, and its application was granted.

(c)       The covenants themselves provide in each case that none of the restrictions in the covenants shall continue to have any force or effect at any time after all the land in the plan has been zoned residential or otherwise by the Manukau City Council or other body having authority in that behalf. Auckland Council has the relevant authority, and has zoned virtually all of the land residential.

(d)       As  already  noted,  the  plaintiff  seeks  to  carry  out  a  residential subdivision of its land. As part of this development, some of the land after subdivision will form public road or reserve vested in Auckland Council.   Sections 238 and 239 of the Resource Management Act

1991 require that where land is so vested in a Council for a road or reserve it must be vested free of any encumbrances.

(e)       The covenants have become obsolete in that they relate to aspects of a neighbourhood which no longer exist.  If they continued in force they would impede the reasonable use of the burdened land.

(f)       The extinguishment will not substantially injure any person entitled to the benefit of them.

[7]      As in the other cases, there has been no opposition by any party to the orders sought.  I am satisfied from the affidavits of service filed on behalf of the applicants that the proceedings have been served on the 12 respondents in accordance with the order for directions as to service made by Hinton J on 20 December 2017, as well as on relevant mortgagees.

[8]      Accordingly, I make the order sought in the originating application dated 15

December 2017 as follows:

(a)       An order extinguishing land covenant created by Transfer 226706.1 from the title to land at 443 Ormiston Road, Flat Bush, Auckland, being

Identifier NZ 97A/201 (North Auckland Land Registry).

van Bohemen J