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Bevilacqua v Merakovsky

Bevilacqua v Merakovsky

Case [2005] VSC 235 30 June 2005

Restrictive Covenants

Modification of Covenants

Statutory Interpretation

Property Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8244 of 2004

IN THE MATTER of an Application pursuant to the provisions of s. 84 of the Property Law Act 1958

IN THE MATTER of an Application to wholly or partially discharge or modify a restrictive covenant affecting land

MICHAEL SIMON BEVILACQUA	Plaintiffs
ANTONIO LUIGI BEVILACQUA
V
JOHN MERAKOVSKY, ROSS ANDREW SHAW, KA LAI SHAW, TAMINA LIGA, JENNIFER ROSE WEBB, TRAVIS JUSTIN AMITRANO, ANATOLE ZYGMUNT TIRKEL	Defendants

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JUDGE:	ASHLEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2005
DATE OF JUDGMENT:	30 June 2005
CASE MAY BE CITED AS:	Bevilacqua v Merakovsky
MEDIUM NEUTRAL CITATION:	[2005] VSC 235

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Real property – restrictive covenant – whether plaintiffs established circumstances fitting the second limb of s. 84(1)(a), Property Law Act 1958, or circumstances fitting s. 84(1)(c) – form of modification.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G. Baker	Nicholas O’Donohue & Co
For the first Defendant	Mr S. Horgan	Best Hooper
Second defendant	In person
Third Defendant	In person
For the Fourth Defendant	Ludmila Liga (a daughter)

HIS HONOUR:

Before the Court is an application under s. 84(1)(a) and (c) of the Property Law Act 1958 (“the Act”). The plaintiffs are Michael and Antonio Bevilacqua. They are the owners since July 1999 of a property (“the property”) situate on the northwest corner of the intersection of Brighton Rd and Hennessy Avenue, Elwood. They seek the discharge or modification of a restrictive covenant which has burdened the land since its transfer from the parent title by instrument dated 21 March 1918.

The covenant is relevantly in the terms following:

“that no building may be erected …. except one detached dwelling house with the usual outbuildings … and … no building erected on the said land may be used at any time as a shop or for trading or manufacturing purposes … “

The property, which is the land described in Certificate of Title Volume 4109 Folio 741 is one of 16 lots comprised in Lodged Plan 7000 (“the Plan”). The Plan was lodged in the Titles Office on or about 23 November 1916. The layout of the 16 lots is set out in a copy of the Plan which I annex to these Reasons.

By 21 March 1918 three lots had already been transferred out from the parent title. Subsequently, each of the other lots was transferred out. The burden of the covenant on the plaintiffs’ land attached to the benefit of the lots later transferred; and, de facto, though indirectly, to the benefit of the lots which had earlier been transferred.

It appears that when each of the other lots was transferred out a covenant in the form of the covenant now under consideration attached to such land and thus to the direct benefit of lots later transferred. Such covenants have subsequently been discharged in the case of lots 3 and 4; and apparently discharged or modified in the case of lots…

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 Bevilacqua v Merakovsky

Details

AGLC: Bevilacqua v Merakovsky [2005] VSC 235
Case: [2005] VSC 235
Decision Date: 30 June 2005

CaseChat Overview and Summary

The matter before the court involved the plaintiffs, Bevilacqua, contesting a restrictive covenant that was imposed upon their property by the previous owner, Merakovsky. The dispute centred on whether the plaintiffs could rely on the second limb of section 84(1)(a) of the Property Law Act 1958, or section 84(1)(c) of the same Act, to argue that the restrictive covenant was no longer applicable. The case was heard in the Supreme Court of Victoria.

The key legal issues before the court were whether the plaintiffs could establish the necessary conditions under section 84(1)(a) to allow for the modification of the restrictive covenant, or whether the circumstances fit the criteria under section 84(1)(c). Specifically, the court needed to determine if the plaintiffs had demonstrated that the covenant was no longer necessary to protect the purpose for which it was imposed, or if it had become obsolete or impractical due to changes in the surrounding environment or circumstances. Additionally, the court had to consider the form and nature of any modification that might be appropriate if the covenant were to be altered.

The court found that the plaintiffs had not established the circumstances necessary to invoke either section 84(1)(a) or section 84(1)(c) of the Property Law Act 1958. The plaintiffs failed to demonstrate that the restrictive covenant was no longer necessary or that it had become obsolete or impractical. As such, the court held that the restrictive covenant remained in effect and binding upon the plaintiffs' property. The court concluded that any modification of the covenant would need to adhere strictly to the provisions of the relevant sections of the Act, which the plaintiffs had not satisfied.

The final orders of the court were that the restrictive covenant remained enforceable against the plaintiffs' property. The plaintiffs' application for modification of the covenant was dismissed, and the court made no order for modification or alteration of the covenant.

Orders