Dandaloo Pty Ltd v Darwich

[2006] NSWSC 1305

CITATION:	Dandaloo Pty Ltd v Darwich [2006] NSWSC 1305
HEARING DATE(S):	28 November 2006
JUDGMENT DATE :	28 November 2006
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
EX TEMPORE JUDGMENT DATE:	11/28/2006
DECISION:	Injunction issued
CATCHWORDS:	REAL PROPERTY – restrictive covenants – when injunction to enforce is appropriate – WORDS AND PHRASES – “vehicle with a weight greater than 3 tonnes”
LEGISLATION CITED:	Road Transport (Safety and Traffic Management) Act 1999
PARTIES:	Dandaloo Pty Limited - Plaintiff Abdul Razzak Darwich - Defendant
FILE NUMBER(S):	SC 5437/06
COUNSEL:	G Butterfield, solicitor - Plaintiff No Appearance - Defendant
SOLICITORS:	Marsdens (Campbelltown) - Plaintiff No Appearance - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

TUESDAY 28 NOVEMBER 2006

5437/06 DANDALOO PTY LIMITED v DARWICH

JUDGMENT – Ex Tempore

1 HIS HONOUR: The plaintiff is a company that was instrumental in arranging a subdivision of land in the suburb of Harrington Park. An 88B instrument was registered on 26 November 2002 relating to the subdivison. That 88B instrument imposes restrictions on each lot in the subdivision, except three named lots that are not relevant to the present application, in terms that include:

“13. No trucks or commercial vehicles over three (3) tonnes shall be parked on any lot burdened. No unregistered vehicles, caravans, trailers, campers or like vehicles shall be kept or be caused to remain on any lot hereby burdened closer to the street adjoining such lot than the front of the house. No trucks, commercial vehicles, unregistered vehicles, caravans, trailers, campers or like vehicles shall be kept or be caused to remain on any street, public area, footpath or public reserve adjoining or in the vicinity of any lot burdened.
…
16. The terms of all the covenants hereby created shall expire and be of no further force and effect from the date expiring ten (10) years after the date of registration of the deposited plan pursuant to which these covenants are created.”

2 It is the plaintiff that is nominated in the 88B instrument as the person having power to vary or modify the restriction.

3 The defendant is the registered proprietor of a lot within the subdivision, known as lot 2218 in Deposited Plan 1043584 and also known as 53 Turbott Avenue, Harrington Park.

4 The proceedings today are being heard ex parte. However, I am satisfied that the defendant has been served with the initiating process, and the affidavit relied upon, on 10 November 2006. The documentation with which the defendant was served nominates today as the return date.

5 The subdivision in question consists of a single street, with allotments, of the size of ordinary suburban allotments, on either side of it. It is completely surrounded by land, which is either existing residential land, or future residential land.

6 There are numerous photographs in evidence that indicate the character of the development there. It is, in large measure, new suburban houses, mostly single storey but with at least one two-storey building, that are built fairly close to each other, and without dividing fences at the front.

7 There has been parked on the defendant’s land on various occasions since 6 May 2006 an Isuzu 525 motor vehicle. The vehicle was parked on or near the defendant’s property on 6 May 2006, 7 May 2006, 6 June 2006, 23 July 2006, 30 July 2006, 6 August 2006, 27 August 2006, 15 October 2006, 22 October 2006, 31 October 2006, and on one other date that the plaintiff cannot identify.

8 Mr Berry, who works for a company that has been engaged by the plaintiff as the project and marketing manager for the estate, gives evidence, that I accept, of having observed the truck on various of those dates. He gives evidence of, on 29 April 2006, speaking with a lady at 53 Turbott Avenue and explained the covenants. Her comment to him was, “We have nowhere else to park”. Mr Berry’s diary note reveals that he reminded her of the obligations under the covenants.

9 The vehicle in question is registered number AA 97 EQ. It has a notation on its side saying, “GVM 10,400.” I am prepared to infer that this is the gross vehicle mass of the vehicle, expressed in kilograms. The Road Transport (Safety and Traffic Management) Act 1999 contains a definition of “GVM (gross vehicle mass)” of a vehicle as meaning:

“The maximum loaded mass of the vehicle:
(a) as specified by the vehicle’s manufacturer, or
(b) as specified by the Authority if: [various circumstances not here applicable].”

10 As I construe covenant No. 13, it refers to trucks or commercial vehicles which, in whatever state they might happen to be from time to time, whether loaded or unloaded, are at that time over three tonnes. Thus, a statement of the maximum loaded mass of the vehicle is insufficient to establish breach of the covenant.

11 However, there is also evidence, provided from the manufacturer’s specifications, of the TARE mass of the vehicle. That specification states that the TARE mass is,

“Estimated mass of cab/chassis with oil, water and fuel tank containing 10 litres of fuel and excluding spare wheel (47 kg) and tools (30 kg).”

12 There are, it seems from the manufacturers specifications, two different types of Isuzu 525 - a medium model, and a long model. The evidence does not establish which of those types of 525 vehicle AA 97 EQ is. However, the TARE mass of the 525 medium is 3255 kilograms, and the TARE mass of the 525 long Isuzu vehicle is 3370 kilograms, so whatever type of vehicle it might be, of those two alternatives, it is a vehicle that is over three tonnes, within the meaning of the covenant.

13 The particular place where the vehicle has on many occasions been parked, as demonstrated by the photographs in question, is in the driveway at the front of the home. It is clearly visible from the street in that location. When parked there, it partly obstructs the footpath. The vehicle is not always parked there - sometimes it appears to be parked on a vacant block of land nearby. However, that is a breach of the final clause in paragraph 13 of the restrictions.

14 I am satisfied that the repeated nature of the breaches, together with the residential, and comparatively closely built character of the neighbourhood in question, make this an appropriate case for the issue of an injunction to enforce the restraint.

15 Because of the provisions of clause 16 of the 88B instrument, the injunction cannot be a perpetual injunction.

16 I order that, to and including 25 November 2012, the defendant not park on the property being lot 2218 in Deposited Plan 1043584 also known as 53 Turbott Avenue, Harrington Park, New South Wales a truck or commercial vehicle with a weight greater than 3 tonnes. I order that, to and including 25 November 2012, the defendant not keep or cause to remain any truck or commercial vehicle on any street, public area, footpath or public reserve, adjoining or in the vicinity of the property known as lot 2218 in Deposited Plan 1043584 also known as 53 Turbott Avenue, Harrington Park 2567.

17 I order the defendant to pay the plaintiff’s costs of this application. These orders may be entered forthwith.

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