Menere v Jackson Mews Management Ltd

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,McGrath,Wilson JJ
Judgment Date16 April 2010
Neutral Citation[2010] NZSC 39
Date16 April 2010
Docket NumberSC 121/2009

[2010] NZSC 39

IN THE SUPREME COURT OF NEW ZEALAND

court:

Elias CJ, McGrath and Wilson JJ

SC 121/2009

BETWEEN
Janice Mary Menere
Applicant
and
Jackson Mews Management Limited
Respondent

I R Millard QC for Applicant

P S J Withnall for Respondent

Application for leave to appeal a decision of the Court of Appeal that an encumbrance over land containing a retirement village, where the encumbrancer agreed to enter into a management services agreement was not discharged on payment of $9.90 being consideration of 10 cents per annum for 99 years — whether the encumbrance could be removed before all the obligations had been performed.

The issue on appeal concerned whether the encumbrance should be discharged on payment of the full amount, or whether there were other obligations that needed to be fulfilled before discharge.

Held: The 2007 Act applied to this situation. Section 97(2) was clear that discharge was only required when all money was paid and all other obligations were performed. The purpose of paying the nominal amount was to secure the performance of the management services obligation. A discharge of the obligation would defy commonsense. Leave to appeal refused.

JUDGMENT OF THE COURT
  • A The application for leave to appeal is dismissed.

  • B The applicant is ordered to pay to the respondent costs of $2,500.

REASONS

1

The applicant purchased a unit in a retirement village which was subject to an encumbrance whereby, in consideration of a payment of 10 cents a year (if demanded), the encumbrancer covenanted to enter into a management services agreement with the respondent. The applicant tendered to the respondent $9.90, as the total rental payable for the remaining 99 years of the encumbrance, and sought the discharge of the encumbrance. The respondent refused to discharge it.

2

The applicant issued proceedings in the High Court seeking an order that the respondent provide a discharge. Ronald Young J so ordered, on the ground that the encumbrance was a “mortgage” for the purposes of the Property Law Act 1952.

Section 81(2) of that Act therefore entitled the applicant to a discharge on payment of the amount secured. 1

3

The respondent appealed. As in the High Court, it was in the Court of Appeal common ground between the parties that the applicable legislation was the Property Law Act 1952. The Court concluded however following the hearing that the Property Law Act 2007 applied,...

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8 cases
  • Body Corporate 341188 v District Court At Auckland
    • New Zealand
    • Court of Appeal
    • 26 August 2015
    ...Ltd v Menere [2009] NZCA 563 , [2010] 2 NZLR 347. Leave to appeal to Supreme Court refused in Jackson Mews Management Ltd v Menere [2010] NZSC 39, [2010] 2 NZLR 347. 26 Law Commission, above n 21. 27 At [7.1] and [7.7]; F M Brookfield “Restrictive Covenants in Gross” [1970] NZLJ 67 at 70. 2......
  • Navilluso Holdings Ltd v Davidson Hc Nap
    • New Zealand
    • High Court
    • 23 October 2012
    ...[2009] NZCA 563 per Hammond and Chambers JJ at [45]–[53]. The Supreme Court refused leave to appeal: Menere v Jackson Mews Management Ltd [2010] NZSC 39. A contrary view, expressed by Fogarty J in Bezett v Aspen Grove Ltd (2005) 6 NZCPR 753 (HC) at [26] must be regarded as 7ANZCO Foods Wait......
  • Escrow Holdings Forty-One Ltd v District Court At Auckland
    • New Zealand
    • Supreme Court
    • 20 December 2016
    ...William Young J; Jackson Mews Management Ltd v Menere [2009] NZCA 563, [2010] 2 NZLR 347 (leave to appeal to the Supreme Court refused: [2010] NZSC 39, [2010] 2 NZLR 45 By s 4 of the Property Law Amendment Act 1986, s 126 was repealed and new provisions, ss 126–126G, were inserted. Section ......
  • Newhaven Waldorf Management Ltd v Allen
    • New Zealand
    • High Court
    • 9 November 2015
    ...[17.041]. 3 Jackson Mews Management Ltd v Menere [2009] NZCA 563 , [2010] 2 NZLR 347 at [46]. 4 Menere v Jackson Mews Management Ltd [2010] NZSC 39 , [2010] 2 NZLR 347 at 5Big River Paradise Ltd v Congreve [2008] NZCA 78, [2008] 2 NZLR 402. 6Firm PI 1 Ltd v Zurich Australian Insurance Ltd ......
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