IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2021-404-22
[2021] NZHC 499	

UNDER	Part 19 High Court Rules and ss 316 and 317 of the Property Law Act 2007	
IN THE MATTER OF	an application to modify or extinguish a restrictive covenant	
BETWEEN	XIA WANG
Applicant	
AND	AUCKLAND COUNCIL
First Respondent

WEIXIONG TANG and XIAOHUA HUANG & ORS
(2nd to 116th Respondents)	

Hearing:	4 March 2021	
Counsel:	Y A Shao for applicant	
Judgment:	12 March 2021	

JUDGMENT OF TOOGOOD J

Solicitors:
Chen Legal, Auckland for applicant

WANG v AUCKLAND COUNCIL [2021] NZHC 499 [12 March 2021]

Introduction

[1]	The applicant,  Xia  Wang,  is  the  registered  proprietor  of  a  property  at 77 Kennedy Avenue, Forest Hill on Auckland’s north shore that is part of a subdivision undertaken over 40 years ago. At the time of the subdivision, the zoning for the site permitted only a single dwelling to be erected. There are 115 other properties in the original subdivision, each of which is a dominant tenement of a restrictive covenant on the title to Ms Wang’s property that limits the erection of any building on the land “other than a single detached residential building designed for and occupied exclusively as one household unit …”.

[2]	Ms Wang has applied under s 317(1)(b), (d) and (e) of the Property Law Act 2007 for an order modifying or extinguishing the covenant on the grounds that:

(a)	the continuation in force of the covenant in its existing form would impede the reasonable use of the burdened land in a different way, or to a different extent, from that which could reasonably have been foreseen by the original parties to the covenant at the time of its creation; or

(b)	the proposed modification will not substantially injure any person entitled; or

(c)	the covenant is contrary to public policy or to any enactment or rule of law.

[3]	The applicant also seeks the leave of the Court to commence the proceeding for modification or extinguishment by way of an originating application under Part 19 of the High Court Rules 2016. She has also applied for orders for substituted service rather than personal service on the other landowners.

Background

[4]	The factual background for the order for modification or extinguishment is that, at the time of the subdivision, the zoning for the site under the relevant district

plan permitted only a single dwelling to be erected. The covenant was consistent, therefore, with the zoning restrictions imposed by the then local authority. Under the current Auckland unitary plan, however, the land is now zoned “Residential – Mixed Housing Suburban”, which permits up to three dwellings to be erected on the site as of right, subject to compliance with applicable standards.

[5]	The change in zoning reflects the Auckland Council’s move to greater intensification. Consistently with that policy objective, Ms Wang wishes to replace the existing single detached dwelling with three residential dwellings complying with the zoning requirements.

Submissions

[6]	Counsel for the applicant, Mr Shao, has prepared a comprehensive and helpful set of papers in the proceeding, including a memorandum regarding service of the application and accompanying documents. On behalf of the applicant, he submits that personal service on all 115 other property owners would be time-consuming and unduly expensive. He seeks orders that personal service on the 115 other property owners be dispensed with and that service be substituted by:

(a)	publication of the application in a local newspaper; and

(b)	delivery of copies of the proceeding by “track and trace” courier to the addresses identified by the applicant.

[7]	The first respondent, the Auckland Council, has been served and abides the decision of the Court.

The application for leave to bring an originating application

[8]	The High Court and the District Court have concurrent jurisdiction under s 316 of the Act to make orders under s 317. Although r 20.13 of the District Court Rules 2014 provides that applications made to that Court under s 316 are to be brought by way of originating application, there is no corresponding provision in the High Court Rules related to proceedings under s 316 issued in this Court. I agree with Doogue J’s

suggestion in Re Marriner Property Ltd that the omission of s 316 of the Act from the equivalent High Court rule (r 19.2) may be an oversight; there is no good reason why applications to this Court under that provision should not also be brought by way of originating application.1 As Doogue J observed, the originating application process is more efficient and appropriate in this type of case than a proceeding brought by way of statement of claim.

[9]	Accordingly, I grant leave under r 19.5 of the High Court Rules 2016 permitting this proceeding to be commenced by originating application on the grounds that the interests of justice require it.

Application for substituted service

[10]	The applicant appears to have a good case for the substantive orders she seeks and it is unlikely that any other landowner in the original subdivision will be adversely affected. I am satisfied in the circumstances that it would be unduly onerous and unnecessary for the applicant to undertake personal service on each one of the owners of the properties that have properly been identified as the respondents in the proceeding, and that substituted service as proposed is appropriate.

[11]	On the application for an order for substituted service, I direct that personal service shall be dispensed with, provided that the applicant:

(a)	publishes an advertisement of her application in the local classified public notices section of the North Shore Times, in the terms set out in the notice attached as an appendix to this judgment, on a date not less than 10 working days prior to the date for the next call of this proceeding in a duty list determined by the Registrar; and

(b)	delivers by “track and trace” courier a service copy of the originating application, and this judgment to the addresses in appendix II of the memorandum  of  counsel  for  the  applicant  dated  11 January  2021

1	Re Marriner Property Ltd [2020] NZHC 1747 at [31].

regarding service of documents to Auckland Council and the gathering of beneficial owners’ information.

Dispensation from service

[12]	Attempts to identify these lots in the original subdivision have failed; it is likely that they have been amalgamated or subdivided. Accordingly, I make an order dispensing with service of the application on the registered proprietors of the following properties described in the Land Covenant in Transfer 489672.1 as registered on Certificate of Title Identifier NA42D/38:

•	the registered proprietor of Lot 3 DP 85611;
•	the registered proprietor of Lot 4 DP 85611;
•	the registered proprietor of Lot 5 DP 85611;
•	the registered proprietor of Lot 6 DP 85611;
•	the registered proprietor of Lot 7 DP 85611;
•	the registered proprietor of Lot 27 DP 85613;
•	the registered proprietor of Lot 28 DP 85613;
•	the registered proprietor of Lot 29 DP 85613;
•	the registered proprietor of Lot 43 DP 85614;
•	the registered proprietor of Lot 52 DP 85614; and
•	the registered proprietor of Lot 53 DP 85614.

Costs

[13]	There are no issues as to costs in this proceeding.

Toogood J

Appendix

APPLICATION TO REMOVE RESTRICTIVE COVENANT AT 77 KENNEDY AVENUE, FORREST HILL, AUCKLAND

TAKE NOTICE THAT:

1.	On [……….] at […..] am/ pm, Xia Wang (the applicant) will apply to the Auckland High Court under CIV-2021-404-22 for an order that the Land Covenant in Transfer 489672.1 (the Covenant) on the title identifier NA42D/38, legally described as Lot 9 DP 85608 with an area of 879 square metres, be modified at the Second Schedule of the Covenant to allow for the construction of three (3) residential dwellings, namely by deleting the words: “The Transferee will not erect on the first land (as herein defined) any building other than a single detached residential building designed for and occupied exclusively as one household unit and will not use the said land or any part of it or allow the said building or any part of it to be used as an individual home unit, flat or town-house or as an apartment or boarding house and generally will not use the said building or allow it to be used other than as a single dwelling house.”

2.	The physical address for  the  property  the  subject  of  the  application  is:  77 Kennedy Avenue, Forrest Hill, Auckland.

3.	Any landowner who has a beneficial interest in one or more of the 115 titles included in the Covenant who wants to appear at the hearing of the application must file an appearance no later than the second working day before […..].

4.	The applicant’s address for service is at the offices of Chen Legal: Level 1, 507 Lake Road, Takapuna, Auckland. The applicant’s solicitor is Yiming (Andrew) Shao of Chen Legal.