Williamson v Phillips

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-324

[2023] NZHC 2177

UNDER
Part 19 of the High Court Rules 2016 and

ss 316 and 317 of the Property Law Act 2007

IN THE MATTER OF

an application to vary a covenant

BETWEEN

TRUDY HELEN WILLIAMSON and

EMMA HELEN HEWSON as trustees of T E C TRUST

First Applicants

WARNORBILL LIMITED
Second Applicant

AND

SIMON JOHN PHILLIPS and LISA ANN PHILLIPS

First Respondents

GRAEME DESMOND RILEY
Second Respondent

JESSICA STANDFIELD and DYLAN JAMES POPE

Third Respondents

GERARD DOMINIC O’REILLY and JANE EMILY O’REILLY

Fourth Respondents

JAMES STEWART PARKINSON and RENNAE DENISE TAYLOR

Fifth Respondents

SHARON ELIZABETH INCH and KELVIN GREGORY INCH

Sixth Respondents

GRAHAM WILLIAM TODD and EMMA KATE TODD

Seventh Respondents

WILLIAMSON v PHILLIPS [2023] NZHC 2177 [14 August 2023]

HAMISH ALISTAIR MCLEAN and WENDY LOUISE MCLEAN
Eighth Respondents

Hearing: 14 August 2023

Counsel:

J A Higby and G L S Lawson for Applicants No appearance for Respondents

Judgment:

14 August 2023

ORAL JUDGMENT OF CHURCHMAN J

[1] These proceedings were commenced originally seeking permission for the filing of an originating application. That matter was determined by Associate Judge Paulsen on 3 July 2023. He made a number of orders in relation to granting leave and to service.

[2] I am advised from the Bar that all parties directed to be served have been served. The Ashburton District Council has consented to the orders sought. Of the eight respondents, seven have formally either signed documents agreeing to the variation sought or, in one case, consented to it but not filed a document. One set of defendants, the first defendants, Mr and Mrs Phillips, have not responded at all. I am advised from the Bar that it is understood they do not wish to be involved in the proceedings, they neither oppose it nor consent to the orders sought.

[3] Having heard counsel, I am satisfied that the orders sought in the draft presented to me this morning are appropriate, and I make orders in accordance with the terms of that draft document.

Churchman J

Solicitors:
Tavendale and Partners, Christchurch for Applicants

CaseChat Overview and Summary

The High Court of New Zealand, Christchurch Registry, heard a case between Trudy Helen Williamson and Emma Helen Hewson, as trustees of the T E C TRUST, and WarnorbiLL Limited, against Simon John Phillips and Lisa Ann Phillips, among others. The case revolved around an application to vary a covenant under Part 19 of the High Court Rules 2016 and sections 316 and 317 of the Property Law Act 2007. The applicants sought to amend the terms of a covenant affecting a piece of property, with the Phillips being the primary respondents who did not wish to be involved in the proceedings.

The court had to decide whether the proposed variation of the covenant was justified and appropriate. This involved assessing the impact of the variation on the property and the rights of the respondents, as well as determining whether the applicants had fulfilled the necessary legal requirements to seek such a variation.

In delivering the judgment, Churchman J noted that all required parties had been served and that the Ashburton District Council had consented to the variation. Seven of the eight respondents either agreed to the variation or had not opposed it. The court found that the orders sought were appropriate, and subsequently made orders in line with the draft presented. The specific terms of these orders were not detailed in the excerpt but would likely pertain to the modification of the covenant as sought by the applicants.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

UNDER	Part 19 of the High Court Rules 2016 and ss 316 and 317 of the Property Law Act 2007
IN THE MATTER OF	an application to vary a covenant
BETWEEN	TRUDY HELEN WILLIAMSON and EMMA HELEN HEWSON as trustees of T E C TRUST First Applicants WARNORBILL LIMITED Second Applicant
AND	SIMON JOHN PHILLIPS and LISA ANN PHILLIPS First Respondents GRAEME DESMOND RILEY Second Respondent JESSICA STANDFIELD and DYLAN JAMES POPE Third Respondents GERARD DOMINIC O’REILLY and JANE EMILY O’REILLY Fourth Respondents JAMES STEWART PARKINSON and RENNAE DENISE TAYLOR Fifth Respondents SHARON ELIZABETH INCH and KELVIN GREGORY INCH Sixth Respondents GRAHAM WILLIAM TODD and EMMA KATE TODD Seventh Respondents

Hearing:	14 August 2023
Counsel:	J A Higby and G L S Lawson for Applicants No appearance for Respondents
Judgment:	14 August 2023