Fraser v Di Paolo

The case of Fraser v Di Paolo involved the plaintiffs, Fraser and his wife, contesting a restrictive covenant on a property they owned in Melbourne, against the defendants, Di Paolo and his wife. The plaintiffs sought to have a restrictive covenant on their property, which prohibited the erection of any buildings with more than two storeys, declared invalid. They argued that the covenant was no longer relevant to the protection of their property or the surrounding area. The case was heard in the Supreme Court of Victoria.

The court was tasked with determining whether the plaintiffs had established circumstances fitting either section 84(1)(a) or section 84(1)(c) of the Property Law Act 1958. Section 84(1)(a) allows for the removal of a covenant if it has become obsolete or unnecessary for the protection of the land for which it was imposed. Section 84(1)(c) allows for the removal of a covenant if the benefit to the dominant tenement has ceased or if the benefit has been merged with the dominant tenement. The court needed to decide whether the plaintiffs had proven that the covenant was obsolete, unnecessary, or that the benefit had ceased or merged.

The court found that the plaintiffs had not established the circumstances required by either section 84(1)(a) or section 84(1)(c) of the Property Law Act 1958. The court found that the covenant was still relevant and necessary for the protection of the plaintiffs' property and the surrounding area. The court held that the plaintiffs had not demonstrated that the benefit to the dominant tenement had ceased or that the benefit had merged with the dominant tenement. The court dismissed the plaintiffs' application to have the restrictive covenant removed. The court held that the covenant remained valid and enforceable.