Litchfield [2012] NZHC 2004 (10 August 2012)

Last Updated: 21 August 2012

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2012-470-561 [2012] NZHC 2004

IN THE MATTER OF section 317 of the Property Law Act 2007

AND

IN THE MATTER OF Encumbrance B481537.3 registered against Computer Freehold Register SA61A/843 (South Auckland Registry)

BETWEEN JEFFREY LYDDON LITCHFIELD AND ZENDA LITCHFIELD TO EXTINGUISH AN ENCUMBRANCE

Applicants

Hearing: (On the papers)

Counsel: ST Scott and JK Hamilton for Applicants

Judgment: 10 August 2012

_{JUDGMENT OF BREWER J}

SOLICITORS

JK Hamilton (Tauranga) for Applicants

COUNSEL ST Scott

JEFFREY LYDDON LITCHFIELD AND ZENDA LITCHFIELD TO EXTINGUISH AN ENCUMBRANCE HC TAU CIV-2012-470-561 [10 August 2012]

[1] On 24 July 2012, the applicants:

(a) Applied to bring proceedings by way of originating application for an order extinguishing an encumbrance; and

(b) Applied for orders dispensing with service of the proceeding.

[2] The factual background, as confirmed in a joint affidavit of the applicants, is as follows:

(a) They are the registered proprietors of land at 16 Donegal Place, Katikati.

(b) Encumbrance B481537.3 registered against the title of their property records their obligation that a home on the land be constructed by Horizon Homes (Tauranga) Ltd or such other builder as may be nominated by Bay Build Properties Ltd. A provision of the encumbrance was that it shall be discharged if it became obsolete or no longer enforceable.

(c) The home was built in 1999 in accordance with the applicants’ obligations. Accordingly, the encumbrance no longer preserves the rights of any party.

(d) Both Horizon Homes (Tauranga) Ltd and Bay Build Properties Ltd have been removed from the Register of Companies.

(e) The Western Bay of Plenty District Council, the only other entity which might have an interest in this matter, has confirmed in writing that it has no interest in this proceeding and does not require to be served.

[3] Under these circumstances, I make the following orders:

(a) Service of the proceeding is dispensed with. The proceeding will be determined on the papers without notice.

(b) I grant permission to proceed by way of originating application.

(c) I order that the covenant contained in encumbrance B481537.3 registered against Computer Freehold Register SA61A/843 (South Auckland Registry) be extinguished. It is to be removed from the said

_{Computer Freehold Register.}

Brewer J