Dandaloo Pty Ltd v Darwich

[2006] NSWSC 1185

CITATION:	Dandaloo Pty Ltd v Darwich [2006] NSWSC 1185
HEARING DATE(S):	16 October 2006
JUDGMENT DATE :	16 October 2006
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Summons dismissed.
CATCHWORDS:	REAL PROPERTY [437] - Restrictive covenants - Other matters - Injunctions - Whether evidence sufficient to support claim for injunction.
PARTIES:	Dandaloo Pty Ltd (P) Abdul Razzak Darwich (D)
FILE NUMBER(S):	SC 4727/06
COUNSEL:	S Troussas, solicitor (P) No apperance (D)
SOLICITORS:	Marsdens Law Group (P) No appearance (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 16 OCTOBER 2006

4727/06 DANDALOO PTY LTD v ABDUL RAZZAK DARWICH

JUDGMENT

1 HIS HONOUR: This is a final hearing of a summons for permanent injunctive relief relating to alleged breaches of a restrictive covenant. I am afraid that the matter has not been approached with any great precision.

2 The restrictive covenant involved is contained in an instrument that relates to DP 1043584. The terms of the covenant itself are not entirely happy. They are contained in cl 13 which is as follows:

“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”.

3 As can be seen, the clause contains different restrictions in three separate sentences. The last sentence lacks precision in that it does not specify whether the trucks and commercial vehicles mentioned, along with other classes of vehicles, in that sentence are limited to the trucks or commercial vehicles over three tonnes mentioned in the first sentence, nor does that sentence specify whether the weight is the weight of a loaded vehicle or the tare weight of a vehicle.

4 I think the best reading is to regard the third sentence, insofar as it relates to trucks and commercial vehicles, as referring to vehicles over three tonnes, since the third sentence in its ambit appears to pick up and include the classes and only the classes of vehicles referred to in the first and second sentences respectively. It would appear that the plaintiff has proceeded on this basis, since the injunction sought in the summons seeks to restrain the parking of trucks or commercial vehicles “with a weight greater than three tonnes tare”.

5 The letter of demand dated 13 February 2006 inaccurately states the terms of the covenant, since it states that under the covenant no trucks or commercial vehicles with a weight greater than three tonnes tare can be kept anywhere on the property, whereas the restriction in the covenant is from parking such vehicles, in effect, in the front yard of the property.

6 The imprecision in the plaintiff’s case continues in the evidence of the observations of what is said to be the offending truck (registered number AA 97 ED) because, in most cases, it is impossible to infer, from the words of the affidavit or the photographs, the relationship of the parked vehicle to the burdened property. It may be that it could be inferred from annexures “I” and “M” that it is in front of the burdened property, although there is no clear identification of the house in the background in those photographs as being on the burdened property.

7 However, the greatest deficiency in the evidence is that there is no evidence whatever as to the tare weight or any other weight of the vehicle depicted, and that is not something about which the Court can draw an inference without evidence.

8 The defendant has been served, and does not appear. Upon my drawing attention to the defects in the plaintiff’s case, no application has been made for an adjournment. In the circumstances, in my view the appropriate course is to dismiss the summons with no order as to costs.

9 The orders I make are:

1 Summons dismissed.
2 No order as to costs.

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