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Dissanayake v Hillman

Dissanayake v Hillman

Case [2007] VSC 426 4 December 2007

Restrictive Covenant

Statutory Interpretation

Declarations

Contract Law

Unconscionable Conduct

Property Law

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 6277 of 2004

DAVID JULIAN HILLMAN and OTHERS	Plaintiffs
(Refer to schedule attached)
v
MUDIYANSELAGE BANDULA DISSANAYAKE and MIHIRI DISSANAYAKE	Defendants

- and -

No. 5207 of 2006

MUDIYANSELAGE BANDULA DISSANAYAKE and MIHIRI DISSANAYAKE	Plaintiffs
v
DAVID JULIAN HILLMAN and OTHERS	Defendants
(Refer to schedule attached)

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 and 7 November 2007
DATE OF JUDGMENT:	4 December 2007
CASE MAY BE CITED AS:	Dissanayake & Anor v Hillman & Ors
MEDIUM NEUTRAL CITATION:	[2007] VSC 426

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Restrictive Covenant – Modification under s 84(1) of the Property Law Act 1958 (Vic) – Court’s discretion to make declarations – Hypothetical question – No dispute between the parties – Proper contradictor – Declarations and effect of agreement between the parties.

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No. 6277 of 2004

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr N Jones	Goddard Elliot
For the Defendants	Mr R H Miller	John Guthrie Pty Ltd

No. 5207 of 2006

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R H Miller	John Guthrie Pty Ltd
For the Defendants	Mr N Jones	Goddard Elliot

TABLE OF CONTENTS

Background......................................................................................................................................... 2

Proposed Modification of the Restrictive Covenant................................................................... 4

The Declarations................................................................................................................................. 7

The History of the Application................................................................................................... 8
Jurisdiction and Discretion.......................................................................................................... 8
Agreement between the Parties................................................................................................ 19

Conclusion......................................................................................................................................... 21

Orders................................................................................................................................................. 21

HIS HONOUR:

Background

On 10 March 1941, Alan Percival Launder was registered as proprietor of 87 acres of land in Glen Waverley. That land comprised Certificate of Title Volume 6453 Folio 558. Seventy-seven acres of that land was subdivided and transferred by Mr Launder to what I assume was a family company – Alan Launder Pty Ltd. The company became the registered proprietor of that land on 14 September 1956. The title particulars were Volume 8143 Folio 478. That land, in turn, was divided into residential allotments under two subdivisions. The first was Plan of Subdivision 64536 (“the Sterling subdivision”), which contained 40 allotments. The second was Plan of Subdivision 79345 (“the Caithness subdivision”), which contained 47 allotments. These plans were approved on 30 April 1965 and 31 May 1968 respectively.

I am informed that the area of these subdivisions is one where the amenity of the outlook is important with attractive views of the nearby Dandenong Ranges. The restrictive covenants under consideration in this case affect the lots in both the Stirling and Caithness subdivisions, and they are almost identical in each case. The relevant passage is as follows:
… that they [the purchasers of the particular allotment] will not erect on the said Lot hereby transferred any building other than one brick or brick veneer dwelling house with usual outbuildings also of brick or brick veneer construction the main floor of which dwelling house shall not be more than two feet above the natural level of the ground at the highest point covered by such floor and such dwelling house shall have only one…

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 Dissanayake v Hillman

Details

AGLC: Dissanayake v Hillman [2007] VSC 426
Case: [2007] VSC 426
Decision Date: 4 December 2007

CaseChat Overview and Summary

The matter of Dissanayake v Hillman was heard in the Supreme Court of Victoria. The dispute between the parties centred on a restrictive covenant imposed on a property, and the potential modification of that covenant under section 84(1) of the Property Law Act 1958 (Vic). The central legal issues the court had to determine were whether the court had the discretion to make declarations regarding a hypothetical question where there was no actual dispute between the parties, and whether a contradictor was necessary in this context. Additionally, the court had to consider the effect of an agreement between the parties on the declarations made.

The court examined the relevant legislation and case law to understand the scope of its discretion in modifying restrictive covenants. It found that while the court generally has the power to modify restrictive covenants under section 84(1), this power must be exercised judiciously and with regard to the context and circumstances of each case. The court held that a contradictor, or proper contradictor, is necessary to ensure that all interests are adequately represented and considered. However, in this case, the court concluded that since there was no actual dispute between the parties, a contradictor was not strictly necessary. The court also considered the effect of the agreement between the parties on the declarations made, finding that the agreement did not preclude the court from exercising its discretion to modify the restrictive covenant if it was deemed necessary in the interests of justice.

Based on the reasoning above, the court found in favour of the applicant, granting the declarations sought and modifying the restrictive covenant as requested. The court concluded that it had the discretion to make the declarations despite the lack of a contradictor, and that the agreement between the parties did not prevent the court from exercising this discretion. The court's decision was guided by the principles of equity and justice, and the need to balance the interests of all parties involved. The final orders of the court were that the restrictive covenant be modified as per the agreement between the parties, and that the declarations sought by the applicant be granted.

Orders