CLUBLEY & ORS -v- BOCHRINIS & ORS [2005] WASC 24

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 24
Published:	08/03/2005
Case No:	CIV:2461/2004	Heard:	20 DECEMBER 2004
Coram:	MASTER SANDERSON	Delivered:	20/12/04
No of pages:	12	Judgment Part:	1 of 1
Result:	Application refused
Category:	B
PDF Version

Parties:	KEITH CLUBLEY ANN CLUBLEY TONY DI FONZO MARGARIETA DI FONZO SHIRLEY VENTER CHIZUKO NAKAJIMA LIONEL TEBBUTT DANA TEBBUTT ALEXANDER FORBES MOIRA FORBES JOHN GLEN JANINE GLEN MAVIS TROY FRANCES LEARIE IAN MAYNARD BRENDA MAYNARD CAROLE BLANCHARD EILEEN PRATLEY KEVIN HORTON SUZANNE INGRAM GAYLE HIGGINS PHILIP PALMER JUSTIN COPPIN STEPHANIE COPPIN ALAN BOND IRENE BOND THOMAS JEFFERIES JANICE BARRATT MAY GRANT GERALDINE RIGGIR ANDREE SAVY-GILES PAUL REID PENELOPE REID BETTY-JANE RUTHVEN EDNA RITCHIE MARK CHURCH JULIE CHURCH THE VINES PROPERTY OWNERS' ASSOCIATION INC CONSTANTINE BOCHRINIS MARIA BOCHRINIS DONALD GLEN SWANTON BEVERLY ANN SWANTON PAUL TRUMAN ROSA TRUMAN
Catchwords:	Transfer of Land Act 1893, s 129C Application to extend operation of restrictive covenant Turns on own facts
Legislation:	Transfer of Land Act 1893, s 129C
Case References:	Oleander Nominees Pty Ltd & Ors v The Owners of Lakeside Villas Strata Plan 14025 [2002] WASC 255 Owners of Corrine Court 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd (2000) 23 WAR 1 Smith v Australian Real Estate & Investment Co Ltd [1964] WAR 163 Barrett v RSE Holdings Pty Ltd [1999] WASC 128 Kort Pty Ltd v Shaw [1983] WAR 113 Pieper v Edwards (1982) 1 NSWLR 336 Re Henderson's Conveyance [1940] Ch 835

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CLUBLEY & ORS -v- BOCHRINIS & ORS [2005] WASC 24 CORAM : MASTER SANDERSON HEARD : 20 DECEMBER 2004 DELIVERED : 20 DECEMBER 2004 PUBLISHED : 8 MARCH 2005 FILE NO/S : CIV 2461 of 2004 BETWEEN : KEITH CLUBLEY

ANN CLUBLEY

TONY DI FONZO

MARGARIETA DI FONZO

SHIRLEY VENTER

CHIZUKO NAKAJIMA

LIONEL TEBBUTT

DANA TEBBUTT

ALEXANDER FORBES

MOIRA FORBES

JOHN GLEN

JANINE GLEN

MAVIS TROY

FRANCES LEARIE

IAN MAYNARD

BRENDA MAYNARD

CAROLE BLANCHARD

EILEEN PRATLEY

KEVIN HORTON

SUZANNE INGRAM

GAYLE HIGGINS

PHILIP PALMER

JUSTIN COPPIN

STEPHANIE COPPIN

ALAN BOND

(Page 2)

IRENE BOND

THOMAS JEFFERIES

JANICE BARRATT

MAY GRANT

GERALDINE RIGGIR

ANDREE SAVY-GILES

PAUL REID

PENELOPE REID

BETTY-JANE RUTHVEN

EDNA RITCHIE

MARK CHURCH

JULIE CHURCH

First Plaintiffs

THE VINES PROPERTY OWNERS' ASSOCIATION INC

Second Plaintiff

AND

CONSTANTINE BOCHRINIS

MARIA BOCHRINIS

First Defendants

DONALD GLEN SWANTON

BEVERLY ANN SWANTON

Second Defendants

PAUL TRUMAN

ROSA TRUMAN

Third Defendants

Catchwords:

Transfer of Land Act 1893, s 129C - Application to extend operation of restrictive covenant - Turns on own facts

Legislation:

Transfer of Land Act 1893, s 129C

(Page 3)

Result:

Application refused

Category: B

Representation:

Counsel:

First Plaintiffs : Mr K A Dundo

Second Plaintiff : Mr K A Dundo

First Defendants : Mr J C W Skinner

Second Defendants : No appearance

Third Defendants : Mr J C W Skinner

Solicitors:

First Plaintiffs : Q Legal

Second Plaintiff : Q Legal

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: [2005] WASC 24
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia presided over the case of Clubley and Others versus Bochrinis and Others. The plaintiffs sought to modify a restrictive covenant that governed certain properties in Perth, specifically requesting the removal of a temporal limit on the covenant's operation. The restrictive covenant, affecting approximately 402 properties in The Vines, included restrictions on construction, business activities, and other uses on the burdened land, with the covenant originally set to expire on 31 December 2004. The plaintiffs aimed to extend the covenant indefinitely, arguing that the restrictions were still beneficial and necessary. The defendants opposed the application, asserting that the court lacked the authority to extend the restriction beyond its stipulated expiration date.

The legal issue centred on the interpretation and application of section 129C of the Transfer of Land Act 1893, which allows for the modification of restrictive covenants. The court had to determine whether the statute permitted the extension of a restrictive covenant beyond its set expiration date. The plaintiffs argued that the statute allowed for modification, including extension, of the covenant if it was in the best interest of the burdened and benefited parties. The defendants countered that the statute was intended to reduce or eliminate restrictions, not to extend them without clear legislative intent.

The court concluded that section 129C did not permit the extension of a restrictive covenant. The language of the statute, along with relevant case law, indicated that the section was intended to reduce or eliminate restrictions, not to extend them. The court found that extending the covenant indefinitely would deprive property owners of a known and agreed-upon limitation on their property rights without compensation, which would amount to the expropriation of private property. This interpretation was supported by previous judicial decisions, which held that the statute did not allow for the expropriation of property rights without clear legislative intent and compensation. Therefore, the court dismissed the plaintiffs' application, holding that section 129C did not authorize the modification of the restrictive covenant in the manner proposed.

Orders