Cross-lease dispute and withholding consent for structural alteration – Martelli v Liow case


Cross-lease disputes are a prevalent issue in property law, especially when it comes to the reasonableness of withholding consent for structural alterations. The recent case of Martelli v Liow [2024] NZHC 968 offers an insightful exploration of this complex area, reaffirming the principles set out in the landmark case Smallfield v Brown [1991]. This article will delve into the Martelli v Liow decision, examining the legal principles applied, the facts of the case, the court’s analysis, and the broader implications for future cross-lease disputes.

Background of the Case

In 2011, Brett Martelli and Susannah Keith (the appellants) purchased a property on a cross-lease title in Remuera, Auckland. They proposed substantial alterations to their property, including a new deck and pool area. Their neighbors, Sue Lynn Liow and Sai Ho Tan (the respondents), objected to these alterations, arguing that the changes would create a “tunnel-like feeling” in the common area and significantly alter the usage dynamics of the shared space.

The Nature of Cross-Lease Agreements

Cross-lease agreements, common in New Zealand, involve multiple owners sharing ownership of a piece of land, each with a leasehold interest in their respective units. This arrangement necessitates a high degree of cooperation and mutual agreement among the co-owners, particularly when one party seeks to make alterations to their unit. The crux of the matter often lies in whether consent for such changes is unreasonably withheld, a determination guided by the principles established in Smallfield v Brown.

Legal Framework and Arbitration

The central issue in Martelli v Liow was the interpretation of a clause in the lease agreement that stated consent to alterations “shall not be unreasonably withheld.” This clause, a common feature in cross-lease agreements, was scrutinized under the principles established in Smallfield v Brown. The arbitrator initially found in favor of the respondents, determining that their concerns were legitimate and not “trivial.”

The Court’s Analysis

Justice Gault, presiding over the High Court, reiterated the two-stage inquiry for assessing the reasonableness of withholding consent. This involves evaluating both the benefits to the party seeking consent and the detriments to the party withholding consent. The arbitrator’s decision was heavily influenced by the perception that the detriments to the respondents were significant and not trifling, as required by the Smallfield test.

Key Findings and Considerations

  1. Substantial Benefit vs. Trifling Detriment: The court emphasized that for consent to be unreasonably withheld, the proposed alteration must provide substantial benefit to the requesting party while causing only trifling detriment to the objecting party. The arbitrator found that the alterations would significantly benefit the appellants but also acknowledged that the respondents’ concerns were valid and substantial.
  2. Impact on Property Value and Usage: Concerns about potential loss of property value and changes in property usage were central to the respondents’ objections. The court noted that these concerns went beyond mere trifles and were legitimate considerations in the assessment of reasonableness.
  3. Balancing Interests: The judgment reinforced that the law prioritizes the interests of cross-lease owners who object to changes, given that they purchase properties with the expectation that the existing conditions will remain stable. This principle is crucial for maintaining the attractiveness of cross-lease ownership.
  4. Good Faith and Reasonableness: Justice Gault also touched upon the importance of good faith in cross-lease relationships. The court noted that both parties must act reasonably and in good faith, considering not only their own interests but also the legitimate concerns of their neighbors.

Broader Implications for Cross-Lease Disputes

The Martelli v Liow decision has significant implications for future cross-lease disputes. By reaffirming the principles of Smallfield v Brown, the judgment provides a clear framework for assessing the reasonableness of withholding consent in cross-lease agreements. This clarity is essential for property owners, legal practitioners, and arbitrators dealing with similar disputes.

Practical Considerations for Cross-Lease Owners

For cross-lease owners, the case highlights the importance of careful consideration and documentation when proposing or objecting to alterations. Owners seeking consent should provide detailed plans and justifications for their proposed changes, demonstrating the substantial benefits and minimal detriments. Conversely, owners withholding consent must articulate their concerns clearly, ensuring they are not seen as trivial or unreasonable.

Conclusion and Remittal

The court concluded that the arbitrator’s approach was consistent with the principles outlined in Smallfield v Brown. However, due to the dominance of references to “trifling” in the arbitrator’s award, the case was remitted for reconsideration in light of the High Court’s judgment. This remittal underscores the need for precision in applying legal principles to ensure fair and equitable outcomes.


The Martelli v Liow decision underscores the importance of the Smallfield test in cross-lease disputes regarding the withholding of consent for alterations. The case reaffirms that while significant benefits to the requesting party are necessary, the detriments to the objecting party must be minimal to deem consent unreasonably withheld. This judgment provides valuable guidance for future disputes, ensuring that the rights and expectations of cross-lease property owners are adequately balanced and protected.

By carefully weighing the benefits and detriments associated with proposed alterations, courts can ensure fair outcomes that respect the interests of all parties involved in cross-lease agreements. This decision reinforces the necessity of good faith and reasonableness in cross-lease relationships, promoting stability and cooperation among property owners.

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