Chaouk v SMK Developers Pty Ltd

In the matter of *Chaouk v SMK Developers Pty Ltd*, heard in the Supreme Court of Victoria, the applicant, Mr Chaouk, sought to restrain the respondent, SMK Developers Pty Ltd, from continuing with construction works on adjoining land. The dispute concerned alleged breaches of restrictive covenants affecting the applicant's property, which Mr Chaouk contended would be infringed by the proposed development.

The primary legal issue before the Court was whether the restrictive covenants, which prohibited the erection of any building other than a single private dwelling house and stipulated that any such dwelling house must be of a certain minimum size and constructed of specified materials, were enforceable against SMK Developers. This involved determining whether the covenants "ran with the land" and were binding on the respondent as the successor in title to the original covenantor.

Judge Wilson found that the restrictive covenants were indeed enforceable. The Court applied the principles of equity governing restrictive covenants, which require that the covenant must "touch and concern" the land burdened, that the original covenanting parties must have intended the covenant to run with the land, and that the covenant must "benefit" the land of the covenantee. His Honour concluded that the covenants satisfied these criteria, as they clearly related to the use and amenity of the land and were intended to preserve the character of the neighbourhood for the benefit of the dominant tenement. The Court also considered whether the respondent had notice of the covenants, which was not in dispute.

Consequently, the Court made orders restraining SMK Developers Pty Ltd from continuing with construction works that were in breach of the restrictive covenants.