Escrow Holdings Forty-One Limited v District Court at Auckland

IN THE SUPREME COURT OF NEW ZEALAND

SC 108/2015
[2015] NZSC 188

BETWEEN

ESCROW HOLDINGS FORTY‑ONE LIMITED
First Applicant

KALLINA LIMITED
Second Applicant

AND

DISTRICT COURT AT AUCKLAND
First Respondent

BODY CORPORATE 341188
Second Respondent

GEORGE VICTOR WILKINSON AND JEREMY KAY COLLINGE AND ORS
Third to Twelfth Respondents

AUCKLAND COUNCIL
Thirteenth Respondent

CHANG TJUN CHONG AND ORS
Fourteenth to Thirty‑Ninth Respondents

Court:	Elias CJ, William Young and O'Regan JJ
Counsel:	J G Miles QC, T J Herbert and R P Thomas for Applicants G J Kohler QC for Second to Twelfth Respondents
Judgment:	10 December 2015

JUDGMENT OF THE COURT

ALeave to appeal is granted (Body Corporate 341188 v District Court at Auckland [2015] NZCA 393).

B The approved ground is:

Does the Deed of Covenant (when read alongside the Memorandum of Encumbrance) confer on the registered proprietors of Lot 2 the exclusive right to use the area shown as “A” on the plan attached to the Deed of Covenant (area “A”) for the purposes of car parking and the right to use the right of way shown as “F” and “G” on the same plan to access area “A”?

CWe make a direction that service on the fourteenth to thirty-ninth respondents be dispensed with.

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REASONS

The approved ground allows for all three questions set out at [47] of the applicant’s submissions to be advanced on appeal.
We accept the submissions of both the applicants and the second to twelfth respondents that service of the proceedings on the fourteenth to thirty-ninth respondents (the unit holders in the second respondent other than the third to twelfth respondents) is unnecessary given that their interests are represented by the second respondent, they have taken no steps in the High Court or Court of Appeal and they have confirmed in writing that they do not wish to participate in the appeal to this Court.

Solicitors:
Goodwin Legal, Auckland for Applicants
Legal Vision, Auckland for Second to Twelfth Respondents

CaseChat Overview and Summary

Escrow Holdings Forty-One Limited and Kallina Limited, the applicants, sought leave to appeal to the Supreme Court of New Zealand against a decision of the Court of Appeal, which had dismissed their appeal in relation to a dispute over the interpretation of a Deed of Covenant and a Memorandum of Encumbrance. The dispute involved the rights of the registered proprietors of Lot 2 to use a specified area for car parking and access via a right of way. The respondents included the District Court at Auckland, Body Corporate 341188, several individuals, Auckland Council, and other unit holders. The applicants argued that the Deed of Covenant and the Memorandum of Encumbrance conferred on them exclusive rights to use a designated area for car parking and access to it via specified rights of way.

The central legal issues before the court were whether the Deed of Covenant, when read alongside the Memorandum of Encumbrance, granted the applicants the exclusive right to use a specific area for car parking and the right to use certain rights of way to access that area. The applicants contended that they had these exclusive rights, while the respondents argued otherwise. The court had to determine the proper interpretation of the legal documents in question and decide whether the applicants' interpretation was correct.

The Supreme Court granted the applicants leave to appeal, focusing on the specific issue of whether the Deed of Covenant and the Memorandum of Encumbrance provided the applicants with exclusive rights to use the specified area for car parking and the right to use the rights of way to access it. The court accepted that the unit holders in the second respondent, who had not participated in the proceedings, need not be served with the appeal documents, as their interests were already represented. The Supreme Court's decision allowed the appeal to proceed on the specified ground, directing that certain respondents need not be served with the appeal documents.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established