Cross-lease disputes in New Zealand and withholding consent – latest decision by the Court of Appeal


The New Zealand Court of Appeal’s decision in Turner v Goldsbury [2024] NZCA 292 highlights the complex nature of cross-lease disputes and the legal principles governing the withholding of consent for property modifications. This case offers a significant precedent on how courts may approach issues related to cross-lease agreements and the reasonable withholding of consent by co-lessors.

Case Background

The appellants, Warren Austin Turner, Linda Christine Turner, and Geoffrey Malcolm Bilkey (the Turners), owned a property subject to a cross-lease. Their dwelling was in disrepair, prompting their desire to demolish and rebuild. Despite obtaining consent from one set of co-lessors, the Wardlaws, they failed to secure consent from the other co-lessors, Kelvin Glen Goldsbury and Christine Joy Nightingale (the Goldsburys), and Onehunga Trustee Company Limited. The Turners contended that the Goldsburys’ refusal was unreasonable under the terms of the cross-lease agreement.

Legal Framework

Under the cross-lease, clause 9 stipulated that any structural alterations required the lessors’ prior written consent, which could not be unreasonably withheld. Clause 19 required lessees to repair any damage with reasonable dispatch, and clause 26 mandated arbitration for resolving disputes related to the lease.

High Court Decision

The High Court dismissed the Turners’ application for a partition order under s 339 of the Property Law Act 2007. The court held that the Turners had not demonstrated that the Goldsburys’ withholding of consent was unreasonable, primarily because the proposed new build significantly differed from the existing structure in terms of footprint and roof profile.

Court of Appeal Decision

On appeal, the Court of Appeal granted the Turners leave to adduce further evidence and set aside the High Court decision. The appeal was allowed on the grounds that the High Court had not adequately considered whether the Goldsburys’ refusal was reasonable given the dilapidated state of the Turners’ property and the necessity of raising the house’s floor level to mitigate flood risks.

Key Findings

  1. Reasonableness of Withholding Consent: The Court emphasized that the reasonableness of withholding consent must be evaluated in the context of the property’s condition and the lessee’s obligations under the lease. The Turners’ property was virtually condemnable, and maintaining it in its current state was impractical.
  2. Impact on Neighbors: The decision considered the impact on neighboring properties and the aesthetic consistency within the cross-lease community. However, the Court noted that necessary improvements, such as flood risk mitigation, should not be unreasonably obstructed by other lessors.
  3. Obligations of Lessees and Lessors: The Court reaffirmed that lessees have a duty to keep their property in good repair and that lessors should not unreasonably prevent lessees from fulfilling this duty, particularly when the proposed changes are essential for safety and habitability.
  4. Arbitration and Dispute Resolution: The role of arbitration as outlined in clause 26 of the lease agreement was highlighted, underscoring the importance of alternative dispute resolution mechanisms in cross-lease contexts. The Court of Appeal’s decision to allow further evidence indicated a flexible approach to ensuring all relevant factors are considered in such disputes.
  5. Flood Risk and Structural Integrity: The necessity of raising the floor level to mitigate flood risks brought to light the importance of structural integrity and safety in property management. The Court recognized that environmental factors and the practicalities of maintaining a habitable dwelling must be weighed against aesthetic and structural uniformity.

Implications for Cross-Lease Property Owners

The Turner v Goldsbury decision has far-reaching implications for property owners involved in cross-lease agreements. It establishes that:

  • Consent Must Be Reasonably Withheld: Co-lessors must provide substantial reasons for withholding consent, particularly when the requested modifications are essential for the maintenance and safety of the property.
  • Environmental and Safety Considerations: Courts may prioritize necessary safety improvements, such as flood mitigation, over aesthetic and structural uniformity.
  • Importance of Arbitration: Lease agreements should include clear arbitration clauses to facilitate dispute resolution and avoid prolonged litigation.
  • Repair Obligations: Lessees are expected to maintain their properties in good condition, and lessors must not unreasonably hinder these efforts.


The Turner v Goldsbury case underscores the delicate balance courts must maintain between respecting the terms of cross-lease agreements and ensuring that consent is not unreasonably withheld. This decision is a crucial reference for property owners and legal practitioners dealing with similar disputes, providing clarity on the standards for reasonableness and the responsibilities of co-lessors and lessees in maintaining property standards.

This case serves as a reminder that while cross-lease agreements are designed to maintain harmony and uniformity among co-owners, they must also accommodate necessary improvements and repairs to ensure the safety and livability of the dwellings involved. Property owners and legal professionals should carefully consider the implications of this case when navigating the complexities of cross-lease disputes and the withholding of consent for property modifications.

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