BAILEY & HUPPATZ

In *Bailey & Huppatz*, Dawe J of the Supreme Court of Victoria considered a dispute concerning the interpretation of a restrictive covenant affecting land at 120-122 Barkly Street, St Kilda. The applicants, Bailey and Huppatz, sought to have the covenant, which prohibited the erection of any building other than a private dwelling house, declared invalid or modified. The respondents, the owners of adjoining land, opposed this application.

The central legal issue before the court was whether the restrictive covenant, registered on the title of the applicants' land, should be modified or extinguished under section 84(1) of the *Property Law Act 1958* (Vic). Specifically, the applicants contended that the covenant impeded the reasonable use of the land for a purpose having practical benefit of substantial advantage to them, and that its continued existence would impede reasonable use without practical benefit of substantial advantage to the objectors.

Dawe J analysed the evidence presented by both parties regarding the current character of the neighbourhood and the potential development of the applicants' land. His Honour considered the historical context of the covenant and its original purpose, weighing this against the present-day circumstances and the potential impact of any modification or extinguishment on the objectors. The court applied the principles established in cases concerning the modification and extinguishment of restrictive covenants, focusing on whether the applicants had discharged the onus of proving the necessary conditions under section 84(1) of the *Property Law Act 1958*.

The application was dismissed.