Burns v Araghi - [2006] NSWSC 687

CITATION: Burns v Araghi [2006] NSWSC 687
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27 and 28 June 2006

JUDGMENT DATE :
28 June 2006

JURISDICTION: Equity Division

JUDGMENT OF: Windeyer J at 1

DECISION: Defendant to remove fixtures in breach of restrictive covenant

CATCHWORDS: REAL PROPERTY - restrictive covenants - covenant provided height restriction - privacy screen and hand rail above garage built higher than covenant height - screen and rail 'a building' under covenant - purpose of covenant to protect views collateral benefits as a result, impact of use of garage roof on persons having benefit

CASES CITED: Mogensen v Portuland Developments Pty Ltd (1983) NSW ConvR 55-116
Re Mason 78 WN (NSW) 925

PARTIES: Robert Ashley Burns (First Plaintiff/First Cross-Defendant)
Leisel Mary Burns (Second Plaintiff/Second Cross-Defendant)
Shirley Joy McLoughlin (Third Plaintiff/Third Cross-Defendant)
Mehrodkht Araghi (Defendant/Cross-Claimant))

FILE NUMBER(S): SC 4433 of 2004

COUNSEL: Mr J E Thompson (Plaintiffs/Cross-Defendants)
Mr P Walsh (Defendant/Cross-Claimant)

SOLICITORS: P Dobrich & Co (Plaintiffs/Cross-Defendants)
Hones Lawyers (Defendant/Cross-Claimant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

WEDNESDAY 28 JUNE 2006

4433/04 ROBERT ASHLEY BURNS & ORS v MEHRODKHT MOHAJER ARAGHI

JUDGMENT

1 HIS HONOUR: This is an application by the plaintiff for a mandatory order requiring the defendant to remove improvements or structures on her property, 16 Illawarra Road, Mosman, which it is accepted are erected in breach of a restrictive covenant. By way of answer to that, the defendant by cross-claim seeks an order that the covenant be modified so as to allow the structures which contravene the restrictive covenant to remain.

2 There has been some concession by the plaintiffs as to one of those structures which is a rail along a pathway and I would intend to modify the covenant so that the particular railing can remain. I should say that, having had a view of the relevant land, in my opinion that modification would not create any injury at all to the persons entitled to the benefit of the restrictive covenant. It is accepted that the pathway at its existing height, which gives foot access to the land of the defendants, should be allowed to remain, and it seems obvious enough, for general safety purposes, a railing would be necessary. No more need be said about that.

3 So that there is no undue suspense, I state now that in my view no further modification ought to be granted.

4 The plaintiffs, Mr and Mrs Burns, are the owners of property 53B Raglan Street, Mosman, and the plaintiff, Mrs McLoughlin, is the owner of property 53A Raglan Street, Mosman. Those properties are the land in folio identifier D/28358 and folio identifier B/28358, so far as the plaintiffs respectively are concerned, and Folio Identifier E/28358, so far as the defendant is concerned.

5 The land of each of the plaintiffs, and I should add also of those persons who are cross-defendants…

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 Burns v Araghi

Details

AGLC: Burns v Araghi [2006] NSWSC 687
Case: [2006] NSWSC 687
Decision Date: 28 June 2006

CaseChat Overview and Summary

The dispute in Burns v Araghi was between the respondents, who were residents of a residential subdivision, and the appellants, who were the owners of a property within the subdivision. The primary issue was whether a privacy screen and handrail constructed by the appellants above their garage exceeded the height restriction imposed by a covenant attached to their property. The covenant limited the height of any building on the property to eight feet, aiming to protect the views and privacy of adjacent properties. The appellants argued that the screen and handrail were not considered a 'building' under the covenant and thus not subject to the height restriction. The respondents contended that the screen and handrail constituted a building and that their construction above the garage constituted a breach of the covenant.

The court had to determine whether the screen and handrail were indeed a 'building' and, if so, whether their construction above the garage constituted a breach of the covenant. The court considered the purpose of the covenant, which was to protect the views and privacy of the respondents, and whether the appellants' construction of the screen and handrail had any impact on these aspects. The court found that the screen and handrail were indeed a building under the covenant, and their construction above the garage did breach the covenant. The court also noted that while the primary purpose of the covenant was to protect views and privacy, the construction of the screen and handrail had the additional benefit of providing privacy and security, which aligned with the collateral benefits of the covenant. The court concluded that the appellants' actions constituted a breach of the covenant, and the respondents were entitled to an injunction to remove the screen and handrail.

The court ordered that the appellants remove the privacy screen and handrail constructed above their garage within a specified period. The court also granted the respondents an injunction preventing the appellants from constructing any similar structures above the garage in the future. Additionally, the court awarded the respondents their costs of the proceedings.

Orders