Grant v Preece - [2012] VSC 55

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2010 01461

IN THE MATTER of Section 84 of the Property Law Act 1958

IN THE MATTER of an application by David Harold Grant and Denise Marie Grant as plaintiffs for the modification of a restrictive covenant contained in instrument of transfer 1416363 in respect of Certificate of Title Volume 6854 Folio 719 being the land situate at 13‑15 King Street, Ivanhoe East 3079.

DAVID HAROLD GRANT AND ANOR	Plaintiffs
v
CARLA LOUISE PREECE	Defendant

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JUDGE:	DALY AsJ
WHERE HELD:	Melbourne
DATES OF HEARING:	17, 18, 19 October 2011, further written submissions 14 February 2012
DATE OF JUDGMENT:	15 March 2012
CASE MAY BE CITED AS:	Grant v Preece
MEDIUM NEUTRAL CITATION:	[2012] VSC 55

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RESTRICTIVE COVENANTS ― Section 84(1) Property Law Act 1958 – Application to modify single dwelling covenant ― Applicable legal principles ― Construction of “obsolescence” and “substantial injury” ― Estoppel by reason of conduct of previous registered proprietor of the defendant’s land.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P. Fox	Simon Jaques & Co
For the Defendant	Mr S. Horgan SC with Mr B.J. Murphy	Kyriakou Lawyers

HER HONOUR:

Introduction

Mr and Mrs Grant are the registered proprietors of the land at 13-15 King Street, Ivanhoe East, which they purchased in 2009. A single level brick house constructed some time in the 1940’s or 1950’s is situated on the property. Mr Grant is a builder and developer by profession, and wishes to subdivide the property, which has a frontage to King Street of 33.6 metres, into two similarly sized lots in order to build two houses, one for his family to live in, and the other to sell. However, the land is burdened by a restrictive covenant, which, among other things, limits the number of dwellings able to be constructed to one. In order to realise their plans, Mr and Mrs Grant have brought an application under s 84(1) of the Property Law Act (Vic) 1958 (“Act”) to modify the restrictive covenant to allow the construction of two houses on their land, and the subdivision of the property into two lots, each lot having a frontage of not less than 15.5 metres to King Street, and an area of not less than 500 square metres. The covenant is what is commonly known as a single dwelling covenant.

Ivanhoe East is an established residential suburb located approximately 12 kilometres north-east of the Melbourne central business district. The original plan of subdivision for the area in which the property is located was registered in 1921, but the area appears to have been substantially developed between the 1930’s and 1960’s, and, save for some lots fronting Lower Heidelberg Road, is primarily residential in character. Lying immediately south to the suburb of Eaglemont, the area is located on the southern slope of what is locally known as Mount Eagle. The topography of the area is relevant for the purposes 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 Grant v Preece

Details

AGLC: Grant v Preece [2012] VSC 55
Case: [2012] VSC 55
Decision Date: 15 March 2012

CaseChat Overview and Summary

Grant and Preece were involved in a legal dispute regarding restrictive covenants, which was decided by the Supreme Court of Victoria. The case centred on a covenant that limited the use of Preece's property to a single dwelling, and Grant sought to modify this covenant to allow for the construction of multiple dwellings on the land. The court was tasked with interpreting the terms of the covenant, specifically the concepts of "obsolescence" and "substantial injury," and determining whether Preece was estopped from enforcing the covenant due to the conduct of the previous registered proprietor.

The legal issues before the court included the interpretation of the restrictive covenant, the application of the principles set out in Section 84(1) of the Property Law Act 1958, and the applicability of estoppel in this context. The court had to determine whether the covenant had become obsolete or whether enforcing it would cause substantial injury to Preece. Additionally, the court considered whether Preece was prevented from enforcing the covenant due to the conduct of the previous registered proprietor, which could be seen as an estoppel.

The court found that the covenant had not become obsolete and did not cause substantial injury to Preece. The interpretation of the covenant was such that it was still applicable and enforceable. The court also concluded that Preece was not estopped from enforcing the covenant based on the conduct of the previous registered proprietor. The court held that the conduct in question did not amount to a representation that would prevent Preece from enforcing the covenant. As a result, the application to modify the restrictive covenant was dismissed.

In light of the findings, the court ordered that the application to modify the restrictive covenant be dismissed, and Preece was permitted to enforce the covenant as it stood. The decision underscored the importance of the specific wording of restrictive covenants and the need for careful consideration of the legal principles involved in modifying such covenants.

Orders