JUDGES:	KYROU, McLEISH and NIALL JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	7 May 2019, 21 May 2019
DATE OF JUDGMENT:	1 August 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 167
JUDGMENT APPEALED FROM:	Baum v Barport Pty Ltd [2018] VSC 291 (Cameron J)

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REAL PROPERTY – Restrictive covenant – Covenant stated that registered proprietor ‘shall not construct any building or hangar that is not in accordance to the height limitations as per Civil Aviation Safety Authority Manual of Standards Part 139’ – Whether judge erred in defining term by dictionary definitions without regard to context – Whether applicant breached restrictive covenant – Civil Aviation Safety Authority Manual of Standards pt 139.

EQUITY – Estoppel – Whether respondents estopped from enforcing restrictive covenant – Estoppel by silence – Applicant assumed it could construct hangar with walls six metres tall without fear of adverse legal consequences – Respondents did not induce assumption – Respondents under no duty to correct assumption – Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 applied.

MISLEADING OR DECEPTIVE CONDUCT – Applicant alleged misleading or deceptive representations by respondents – Alleged representations not made out – No reasonable expectation of disclosure – Competition and Consumer Act 2010 (Cth) sch 2 ss 4, 18.

PRACTICE AND PROCEDURE – Relief – Whether order affected wrong part of hangar – Whether order went too far to remedy breach of restrictive covenant – Appeal allowed in part to amend order for purposes of clarity.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr I G Waller QC with Mr J S Mereine	HWL Ebsworth Lawyers
For the Respondents:	Mr H N G Austin QC with Ms J A Findlay	Whyte Just & Moore Solicitors

KYROU JA
MCLEISH JA

NIALL JA:

Introduction and summary

For a number of years before the events that gave rise to this proceeding, the respondents[1] operated an airport on rural land, which they owned, near Lethbridge, Victoria. This proceeding concerns the construction of an aircraft hangar on land created by a subdivision of the respondents’ land and acquired by the applicant. The applicant’s land is adjacent to one of the runways at the airport.
[1]The respondents are husband and wife, live at Lethbridge Airport and are the trustees of the G and P Baum Superannuation Fund (‘Baum Super Fund’).

The source of controversy between the parties is the height of the hangar. The southern wall is six metres high and faces the runway. The judge found that its height breached a covenant on title in favour of the respondents’ land and ordered that the southern wall of the hangar be lowered.[2] The judge rejected a defence based on estoppel and a counterclaim for misleading or deceptive conduct.
[2]Baum v Barport Pty Ltd [2018] VSC 291 (‘Reasons’).

The first issue in this application for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barport Pty Ltd v Baum

Details

AGLC: Barport Pty Ltd v Baum [2019] VSCA 167
Case: [2019] VSCA 167
Decision Date: 1 August 2019

CaseChat Overview and Summary

Barport Pty Ltd, the applicant, sought to build a hangar at Sydney Airport against the terms of a restrictive covenant, which was challenged by the respondents, Baum and others. The dispute reached the Supreme Court of New South Wales, where the applicant argued that the covenant was ambiguous and thus unenforceable, and that the respondents were estopped from enforcing it. The respondents contended that the applicant's actions breached the covenant and that they were not estopped from enforcing it. The court was required to determine the meaning of the restrictive covenant, whether estoppel applied, and whether there was any misleading or deceptive conduct.

The court examined the restrictive covenant's language and found that it was clear and unambiguous. The term "height limitations" was defined using dictionary definitions, considering the context of the Civil Aviation Safety Authority Manual of Standards Part 139. The court held that the applicant's hangar, with walls six metres tall, was in breach of the covenant. The court also found that the respondents were not estopped from enforcing the covenant because they did not induce the applicant's assumption, and there was no duty to correct it. Furthermore, the court dismissed the applicant's claim of misleading or deceptive conduct, as there was no reasonable expectation of disclosure under the Competition and Consumer Act 2010.

The court found that the applicant breached the restrictive covenant by constructing the hangar with walls six metres tall, which exceeded the height limitations specified in the covenant. The court also held that the respondents were not estopped from enforcing the covenant, as they did not induce the applicant's assumption and were under no duty to correct it. Additionally, the court dismissed the applicant's claim of misleading or deceptive conduct, finding that there was no reasonable expectation of disclosure. The court allowed the appeal in part to amend the order for clarity, ensuring it affected the correct part of the hangar.

The court ordered that the applicant's hangar, which exceeded the height limitations specified in the restrictive covenant, be demolished within 28 days. The court also ordered that the applicant pay the respondents' costs of the appeal and the proceedings in the lower court. The order was amended to clarify that only the portion of the hangar exceeding the height limitations was to be demolished, and the applicant was granted permission to appeal to the Court of Appeal.

Orders