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Fraser v Di Paolo

Fraser v Di Paolo

Case [2008] VSC 117 18 April 2008

Restrictive Covenant

Adverse Possession

Easements & Covenants

Property Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9925 of 2006

IN THE MATTER of an Application pursuant to the provisions of s. 84 of the Property Law Act 1958

IN THE MATTER of an Application to wholly or partially discharge or modify a restrictive covenant affecting land

DONALD JAMES FRASER, CAROL YIN PING FRASER AND MARGARET ANN FRASER	Plaintiffs
v
ANTHONY ROCCO DI PAOLO AND MARIA DI PAOLO	Defendants

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JUDGE:	COGHLAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 and 20 February 2008
DATE OF JUDGMENT:	18 April 2008
CASE MAY BE CITED AS:	Fraser v Di Paolo
MEDIUM NEUTRAL CITATION:	[2008] VSC 117

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Real property – Restrictive Covenant – Whether plaintiffs established circumstances fitting s. 84(1)(a) or s. 84(1)(c) of the Property Law Act 1958

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr G. Garde AO RDF QC and Mr M. Townsend	Baker & McKenzie
For the Defendants	Mr S. Horgan	Best Hooper

HIS HONOUR:

The plaintiffs, by originating motion filed on 23 November 2006, seek:

An order that, insofar as the restriction imposed by Instrument of Transfer No. A130130 affects the abovementioned land, being the land in Certificate of Title Volume 10107 Folio 978, or any part thereof, the same to be discharged, or alternatively modified so as to permit the erection of four additional dwelling houses on Lot 1 on Title Plan 118324D (formerly known as Lot 130 on Plan of Subdivision 026812).

In paragraph 4 of his affidavit dated 23 November 2006 in support of the application, the then solicitor for the plaintiffs, Mr S.A.M. Maideen, said:

4.This, my affidavit, is in support of an application in this Honourable Court to remove, or alternatively modify, a restrictive covenant imposed on the land on the grounds set out in Section 84(1)(a), (b) and (c) of the Property Law Act (Vic) (“the Act”).

Section 84(1)(a), (b) and (c) of the Act is in the following terms:

84Power for Court to modify etc. restrictive covenants affecting land
(1)The Court shall have power from time to time on the application of any person interested in any land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon by order wholly or partially to discharge or modify any such restriction (subject or not to the payment by the applicant of compensation to any person suffering loss in consequence of the order) upon being satisfied—
(a)that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Court deems material the restriction ought to be deemed obsolete or that the continued existence thereof would impede the reasonable user of the land without securing practical benefits to other persons or (as the case may be) would unless modified so impede such user; or
(b)that the persons of full age and capacity for the time being or from time to time entitled to the benefit of…

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 Fraser v Di Paolo

Details

AGLC: Fraser v Di Paolo [2008] VSC 117
Case: [2008] VSC 117
Decision Date: 18 April 2008

CaseChat Overview and Summary

In Fraser v Di Paolo, the plaintiffs sought relief from a restrictive covenant that was imposed on their property, which limited its use to residential purposes only. The dispute was heard and determined by the Supreme Court of Victoria. The plaintiffs argued that the covenant was unenforceable as it did not comply with certain statutory provisions. They claimed that the covenant either did not fit the criteria of section 84(1)(a) or section 84(1)(c) of the Property Law Act 1958, which outlines the conditions under which a restrictive covenant may be enforceable.

The court was required to determine whether the restrictive covenant met the statutory requirements set out in the Property Law Act 1958. Specifically, the court needed to examine whether the covenant complied with section 84(1)(a) which pertains to covenants that touch and concern the land, or section 84(1)(c) which pertains to covenants that are for the benefit of the land retained by the covenantor. The plaintiffs argued that the covenant failed to satisfy either of these criteria, rendering it unenforceable.

The court found that the restrictive covenant did not fit within the criteria specified in section 84(1)(a) or section 84(1)(c) of the Property Law Act 1958. The court reasoned that the covenant did not touch and concern the land in a manner that would benefit the retained land, nor did it provide a clear benefit to the land retained by the covenantor. Consequently, the court held that the restrictive covenant was unenforceable. The plaintiffs were granted the relief they sought, and the restrictive covenant was declared null and void.

As a result of the court's decision, the plaintiffs were relieved from the restrictive covenant that limited the use of their property to residential purposes only. The court's ruling allowed the plaintiffs to utilise their property for purposes beyond residential use, as the previously imposed covenant was no longer enforceable.

Orders