JUDGE:	Cameron J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 – 18 May, 22 – 24 May, 6 – 7 June, 13 – 14 June 2017
DATE OF JUDGMENT:	1 June 2018
CASE MAY BE CITED AS:	Baum v Barport
MEDIUM NEUTRAL CITATION:	[2018] VSC 291

---

REAL PROPERTY - Restrictive covenant – Application by plaintiff to enforce covenant – Covenant purported to impose ‘height limitations’ in Civil Aviation Safety Authority Manual of Standards Part 139 – Covenant found to impose height limit on construction – Woolcock St Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 - Russell Maynard Clare & Ors v Eva Bedelis [2016] VSC 381 considered.

PRACTICE AND PROCEDURE – Application to reopen evidence – Application rejected – Evidence Act 2008 (Vic) ss 67, 69 – Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 considered.

EQUITY – Estoppel – Defendant alleged plaintiff estopped from enforcing covenant – Not established – Unreasonable for defendant to adopt assumption.

MISLEADING OR DECEPTIVE CONDUCT – Defendant alleged misleading representations by plaintiff – Alleged representations did not occur – Defendant alleged misrepresentation by silence – Defendant’s expectation that plaintiffs inform it of certain facts not was reasonable – Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546 – Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 – Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 – Rafferty v Madgwicks (2012) 203 FCR 1 considered.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms J A Findlay	Whyte Just & Moore Lawyers
For the Defendant	Mr J S Mereine	HWL Ebsworth Lawyers

HER HONOUR:

What is this case about?

This case concerns the construction of an aircraft hangar and, specifically, whether that construction is in breach of a restrictive covenant.

The plaintiffs say that the defendant’s erection of an aircraft hangar on the subject land is in breach of a restrictive covenant because it is above the covenanted height limit and therefore should be demolished or, alternatively, rectified.

The defendant (and plaintiff by counterclaim) says that the plaintiffs ought be estopped from seeking the relief they do. In addition, the defendant contends the plaintiffs have engaged in misleading or deceptive conduct in relation to the construction of the hangar, and therefore the relief they seek ought be denied.

The defendant (by its counterclaim) also seeks an order that the contract of sale of the land on which the aircraft hangar was constructed is void ab initio.

Background

The plaintiffs, Mr Garry Maxwell Baum and Mrs Patricia Anne Baum (‘the Baums’), purchased a property in the early 1990s which they subsequently…

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 Baum v Barport

Details

AGLC: Baum v Barport [2018] VSC 291
Case: [2018] VSC 291
Decision Date: 1 June 2018

CaseChat Overview and Summary

In the Supreme Court of Victoria, Baum, the plaintiff, sought to enforce a restrictive covenant against Barport, the defendant, which purportedly imposed height limitations in accordance with the Civil Aviation Safety Authority Manual of Standards Part 139. The dispute arose from Barport's construction activities that allegedly contravened the covenant. The court was tasked with determining the validity and enforceability of the covenant, the scope of the height restrictions it imposed, and whether the plaintiff was estopped from enforcing the covenant or if there were any misleading or deceptive conduct claims.

The court first examined the restrictive covenant's terms and whether it imposed a height limit on construction. The court considered precedents such as Woolcock St Investments Pty Ltd v CDG Pty Ltd and Russell Maynard Clare & Ors v Eva Bedelis, concluding that the covenant did indeed impose a height limit. The court then turned to the estoppel claim, finding that it was not reasonable for the defendant to assume the plaintiff would not enforce the covenant. Regarding the misleading or deceptive conduct claims, the court held that there were no misleading representations by the plaintiff and that the defendant's expectation for the plaintiff to inform it of certain facts was not reasonable.

The court rejected the application to reopen evidence, relying on provisions of the Evidence Act 2008 (Vic) and the case of Inspector-General in Bankruptcy v Bradshaw. The court found that the plaintiff was entitled to enforce the restrictive covenant as per the terms agreed upon in the original contract. The court ruled in favour of the plaintiff, enforcing the covenant and preventing the defendant from exceeding the specified height limit in its construction activities.

Orders