Foudoulis v O'Donnell - [2020] VSC 248

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE

Not Restricted

COMMON LAW DIVISION
PROPERTY LIST

S CI 2017 00193

IN THE MATTER of an application pursuant to s 84 of the Property Law Act 1958 for the modification of a restrictive covenant

– and –

IN THE MATTER of an application for the modification of the restriction arising under a covenant in a transfer of land registered No. 1073692 affecting the land at 6 Wilson Boulevard, Reservoir being the land in folio of the Register volume 4651 folio 188

BETWEEN:

PETER FOUDOULIS	Plaintiff
- and -
KEVIN HUGH O’DONNELL and DIMMITY JANE PUSPA O’DONNELL	Defendants

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19, 20 February 2018
DATE OF JUDGMENT:	8 May 2020
CASE MAY BE CITED AS:	Foudoulis v O’Donnell
MEDIUM NEUTRAL CITATION:	[2020] VSC 248

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REAL PROPERTY ― Restrictive covenant on title ― ‘Not more than one dwelling house shall be erected’ ― Proposal to build two additional double storey dwellings at rear of existing single storey dwelling ― Application to modify covenant to enable proposed development ― Applicant’s statutory burden of proving modification will not substantially injure the persons entitled to the benefit of the restriction ― Court’s approach to assessment of substantial injury ― Covenant not obsolete ― Relevance of instances of re-subdivisions and numerous dwellings within other Lots in neighbourhood ― Precedential effect of modification ― Application refused ― Property Law Act 1958 (Vic) s 84(1)(c).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Lloyd	Aughtersons
For the Defendants	Mr M Townsend	MPW Lawyers

HIS HONOUR:

The suburb of Reservoir is about 12 kilometres north of Melbourne’s central business district. In this Court’s decision in Stanhill Pty Ltd v Jackson[1] it is reported that the subdivision of land in Reservoir occurred gradually after a purchase, in the year 1919, of 1119 acres of land by two entrepreneurs who gradually subdivided the land into more than 3000 Lots. Initially, allotments of residential land were transferred directly out of the original title. Later on, out of the original title, larger Lots were transferred from which there were further subdivisions into residential Lots.
[1](2005) 12 VR 224, [4] (Morris J).

In this case, the plaintiff Peter Foudoulis is the registered proprietor of the land at 6 Wilson Boulevard in Reservoir. It is a rectangular shaped Lot having an area of about 892 square metres.[2] There is built on it a single storey brick veneer dwelling with a tiled roof. The dwelling has a front yard and back yard and a driveway on its northern boundary that leads to a garage at the rear of the property.
[2]Frontage of 19.8 m; variable depth of 43.9 m to 46.2 m.

By external appearance, the plaintiff’s house and land is in good condition. From a walking and driving view that I have taken of this pleasant neighbourhood, his home resembles many of the established homes in this part of suburbia: unostentatious; a good sized block;…

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 Foudoulis v O'Donnell

Details

AGLC: Foudoulis v O'Donnell [2020] VSC 248
Case: [2020] VSC 248
Decision Date: 8 May 2020

CaseChat Overview and Summary

The case of Foudoulis v O'Donnell involved a dispute over a restrictive covenant on a property in Victoria. The covenant stipulated that no more than one dwelling house should be erected on the lot. The applicant, Foudoulis, sought to modify this covenant to enable the construction of two additional double storey dwellings at the rear of an existing single storey dwelling. The respondent, O'Donnell, opposed the modification, arguing it would cause substantial injury to those entitled to the benefit of the restriction. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the applicant had discharged the onus of proving that modifying the covenant would not substantially injure the persons entitled to its benefit. The court considered whether the covenant was obsolete and the impact of the proposed development on the neighbourhood, including instances of re-subdivisions and multiple dwellings in nearby lots. The court also needed to determine the precedential effect of modifying the covenant and whether such a modification was warranted under the circumstances.

The court held that the covenant was not obsolete and that modifying it would indeed cause substantial injury to those entitled to its benefit. The court found that the applicant had not met the statutory burden of proving otherwise. The court took into account the precedent set by earlier cases and the potential impact of allowing the proposed development on the character and value of the neighbourhood. As a result, the application to modify the covenant was refused. The court's decision was grounded in the provisions of section 84(1)(c) of the Property Law Act 1958 (Vic).

The final order of the court was that the application to modify the restrictive covenant on the property was dismissed, and the covenant remained in force as originally stipulated. The court's decision was based on the applicant's failure to demonstrate that modifying the covenant would not cause substantial injury to those entitled to its benefit.

Orders