BARRETT & ANOR -v- RSE HOLDINGS PTY LTD & ORS [1999] WASC 128

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 128
Published:	13/08/1999
Case No:	CIV:2306/1998	Heard:	23 JULY 1999
Coram:	PARKER J	Delivered:	23/07/99
No of pages:	17	Judgment Part:	1 of 1
Result:	Application to vary covenant dismissed
PDF Version

Parties:	ROBERT JAMES BARRETT LINDA ALICE BARRETT RSE HOLDINGS PTY LTD ANDREW DAVID METCALF LOUISE CHERYL METCALF ALLAN ROSS RICE JENNIFER ANN RICE SEAN ROBERT MCGARRY SHEELAGH ANNE DOYLE JERRY PAANS WENDY PATRICIA PAANS PETER GEOFFREY LEWIS VICTORIA JEAN LEWIS JEREMY MARK CONNOR NACIK PTY LTD JUSTIN RONALD CHARLES FRENCH FREDERICK JOHN ABBEY SHIRLEY ANN ABBEY FARON TODD ABBEY KIM ANDREW FROST FIONNUALA MARY FROST ROBERT CARMICHAEL DORMER SIOBHAN MARGOT DORMER SIMON PETER WRIGHT KERRY LYNN WRIGHT MICHAEL CRAIG HYDE CAROLE EVELINE HYDE NICHOLAS KENNETH ROPER ALEXANDER PETER ROPER GUY JOHN MOORE JOSEPHINE MARY MOORE ALISON KATHERINE PAULL AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD BANK OF WESTERN AUSTRLAIA LTD TOWN AND COUNTRY BANK LTD NATIONAL AUSTRALIA BANK LTD WESTPAC BANKING CORPORATION COMMONWEALTH BANK OF AUSTRALIA
Catchwords:	Real property Restrictive covenant limiting height of buildings Statutory power to vary Whether application within statutory power Meaning of substantial injury to those entitled to benefit of covenant Webster v Bradac (1993) 5 BPR 12032, applied
Legislation:	Transfer of Land Act 1893 (WA) s 129C(1)
Case References:	Kort Pty Ltd v Shaw [1983] WAR 113 Wall v Australian Real Estate Investment Company Ltd [1978] WAR 187 Webster v Bradac (1993) 5 BPR 12,032 Perth Construction Pty Ltd v Mount Lawley Pty Ltd (1955) 57 WALR 41

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : BARRETT & ANOR -v- RSE HOLDINGS PTY LTD & ORS [1999] WASC 128 CORAM : PARKER J HEARD : 23 JULY 1999 DELIVERED : 23 JULY 1999 PUBLISHED : 13 AUGUST 1999 FILE NO/S : CIV 2306 of 1998 BETWEEN : ROBERT JAMES BARRETT

LINDA ALICE BARRETT

Plaintiffs

AND

RSE HOLDINGS PTY LTD

First Defendant

ANDREW DAVID METCALF

LOUISE CHERYL METCALF

Second Defendants

ALLAN ROSS RICE

JENNIFER ANN RICE

Third Defendants

SEAN ROBERT MCGARRY

SHEELAGH ANNE DOYLE

Fourth Defendants

JERRY PAANS

WENDY PATRICIA PAANS

Fifth Defendants

PETER GEOFFREY LEWIS

(Page 2)

VICTORIA JEAN LEWIS

Sixth Defendants

JEREMY MARK CONNOR

Seventh Defendant

NACIK PTY LTD

Eighth Defendant

JUSTIN RONALD CHARLES FRENCH

Ninth Defendant

FREDERICK JOHN ABBEY

SHIRLEY ANN ABBEY

FARON TODD ABBEY

Tenth Defendants

KIM ANDREW FROST

FIONNUALA MARY FROST

ROBERT CARMICHAEL DORMER

SIOBHAN MARGOT DORMER

Eleventh Defendants

SIMON PETER WRIGHT

KERRY LYNN WRIGHT

Twelfth Defendants

MICHAEL CRAIG HYDE

CAROLE EVELINE HYDE

Thirteenth Defendants

NICHOLAS KENNETH ROPER

ALEXANDER PETER ROPER

Fourteenth Defendants

GUY JOHN MOORE

JOSEPHINE MARY MOORE

Fifteenth Defendants

ALISON KATHERINE PAULL

Sixteenth Defendant

(Page 3)

AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD

Seventeenth Defendant

BANK OF WESTERN AUSTRLAIA LTD

Eighteenth Defendant

TOWN AND COUNTRY BANK LTD

Nineteenth Defendant

NATIONAL AUSTRALIA BANK LTD

Twentieth Defendant

WESTPAC BANKING CORPORATION

Twenty First Defendant

COMMONWEALTH BANK OF AUSTRALIA

Twenty Second Defendant

Catchwords:

Real property -…

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.

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Details

Case: [1999] WASC 128
Decision Date

CaseChat Overview and Summary

The case of Barrett v RSE Holdings Pty Ltd involved an application by the plaintiffs, Robert James Barrett and Linda Alice Barrett, to the Supreme Court of Western Australia to vary a restrictive covenant that limited the height of buildings on their ocean-front property. The plaintiffs sought to increase the height restriction from 18.7 above the Australian Height Datum (ahd) to 19.86 ahd. The defendants, including various lot owners and financial institutions, opposed the application. The court, presided over by Parker J, dismissed the application on 23 July 1999, finding that it did not fall within the statutory power to vary the covenant as provided in s 129C(1) of the Transfer of Land Act 1893. The court also found that even if the application had fallen within the statutory power, it would not have been appropriate to exercise the discretion to vary the covenant. The court held that the continued existence of the height restriction would not impede the reasonable use of the plaintiffs' land, and that varying the covenant would substantially injure other lot owners who had purchased their properties with the understanding of the height restriction. The court further found that modifying the plaintiffs' roof to comply with the covenant would not be feasible or acceptable to the plaintiffs, leading to the conclusion that the application should be dismissed.

Orders