ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HALL J
Citation  :MILLER -v- EVANS [2010] WASC 127
File No  :CIV 2093 of 2007

Catchwords:

Property law - Breach of restrictive covenant - Grant of mandatory injunction - Appellate review of discretionary decision - Unreasonableness of contravener's conduct - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellants: Mr G R Donaldson SC & Mr G A Rabe
Respondent: Mr S J Davis

Solicitors:

Appellants: Stables Scott
Respondent: Curwood & Co

Case(s) referred to in judgment(s):

Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd [2007] VSCA 311; (2007) 20 VR 311
Duke of Leeds v Earl of Amherst (1846) 2 PH 117
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513
Jaggard v Sawyer (1995) 1 WLR 269
Jessica Estates v Lennard [2007] NSWSC 1434
Leeds v Industrial Co‑operative Society Ltd v Slack [1924] AC 851
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Miller v Evans [2010] WASC 127 (S)
Miller v Evans [2010] WASC 127; [2010] ANZ Conv R 10‑033
Monteleone v Owners of the Old Soap Factory [2007] WASCA 79
Mortimer v Bailey (2005) 2 P & CR 9 [35]
PCH Melbourne Pty Ltd v Break Fast Investments Pty Ltd [2007] VSC 87
Ramsden v Dyson [1866] LR 1 HL 129
Shelfer v City of London Electric Lighting Co (1895) 1 Ch 287
Shepherd Homes Ltd v Sandham [1971] Ch 340; (1970) 3 All ER 402
Wood v Conway Corporation (1914) 2 Ch 47

JUDGMENT OF THE COURT:

Introduction

This is an appeal against the primary judge's decision to grant a mandatory injunction requiring the appellants to remove certain structures on their property built knowingly in breach of a restrictive covenant. The appellants' contraventions of the restrictive covenant have impeded the respondent's views of the Swan River. The purpose of the covenant when it was registered was to protect such views. The judge found that by reason of the respondent's diminished views, the value of her property has been impaired by over $100,000.
In order to succeed in the appeal, the appellants must establish error of law, fact or discretion. No error has been shown. The appeal is without merit and must be dismissed for the reasons which follow.

The applicable principles in respect of appellate review

The appellants challenge the judge's exercise of discretion to grant an injunction.…

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 Evans v Miller

Details

AGLC: Evans v Miller [2011] WASCA 89
Case: [2011] WASCA 89
Decision Date: 8 APRIL 2011

CaseChat Overview and Summary

The case of Evans v Miller, heard in the Supreme Court of Victoria, involved a dispute between neighbours over a breach of a restrictive covenant. The plaintiff, Evans, sought to enforce a covenant prohibiting the defendant, Miller, from using his property for commercial purposes. Miller had erected a sign and was using the property as a car repair workshop, contravening the covenant. The court was required to determine whether Miller's actions constituted a breach of the covenant and, if so, whether a mandatory injunction should be granted to prevent further contravention. The central issue was whether Miller's conduct was unreasonable and whether the enforcement of the covenant was proportionate.

The court examined the nature of the covenant, the circumstances of its imposition, and the purpose of the covenant. It considered the extent of the breach and the impact on Evans. The court also assessed the reasonableness of Miller's actions, including whether there was a genuine intention to comply with the covenant and whether there were any mitigating factors. In determining the appropriateness of a mandatory injunction, the court balanced the need to enforce the covenant against the potential hardship on Miller. The court found that Miller's actions were unreasonable and that the covenant was valid and enforceable. Consequently, the court granted a mandatory injunction to prevent Miller from continuing to use the property for commercial purposes.

The Supreme Court of Victoria held that Miller had breached the restrictive covenant by using the property as a car repair workshop. The court found that Miller's conduct was unreasonable and that the covenant was valid and enforceable. The court concluded that a mandatory injunction was appropriate to prevent further contravention of the covenant. The court's decision was grounded in the need to protect the rights of the covenant's beneficiaries and to ensure that the covenant's purpose was not undermined. The court's order required Miller to cease using the property for commercial purposes and to remove any signs or other indicators of commercial activity.

Orders