Hermez v Karahan - [2012] VSC 443

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2011 5483

IN THE MATTER of the Property Law Act 1958 (Vic), Section 84

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IN THE MATTER of an application by Ameer Hermez for the discharge and/or modification of the restrictive covenant contained in Instrument of Transfer No. V353101R registered in the Land Titles Office in the Register Book and imposed upon the land more particularly described in Certificate of Title Volume 10353 Folio 589

AMEER HERMEZ	Plaintiff
v
ERHAN KARAHAN	Defendant

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JUDGE:	DALY AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2012
DATE OF JUDGMENT:	1 November 2012
CASE MAY BE CITED AS:	Hermez v Karahan
MEDIUM NEUTRAL CITATION:	[2012] VSC 443

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RESTRICTIVE COVENANTS – Application to remove single dwelling covenant under s 84 Property Law Act 1958 (Vic) – whether single dwelling restriction obsolete – whether removal or modification would “substantially injure” those entitled to the benefit of the restriction

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mrs L.L. Harrison	Robyn Calder
For the Defendant	In person

HER HONOUR:

Mr Hermez owns a vacant block of land on the corner of Paringa Boulevard and Golden Ash Court, Meadow Heights, in Melbourne’s northern suburbs. Paringa Boulevard is a reasonably significant thoroughfare, upon which a primary school and a substantial shopping centre are located, while Golden Ash Court is a residential street, save for a kindergarten/childcare centre located immediately opposite Mr Hermez’s land (known as 40B Paringa Boulevard).

40B Paringa Boulevard[1] (“land’) has an area of 342 square metres with a width of 11.5 metres and a depth of 30.8 metres. It is burdened by a restrictive covenant (“covenant”) which is expressed as follows:[2]
[1]Described in Certificate of Title Volume 10353 Folio 589, and being Lot 29 on Plan of Subdivision PS40323M.
[2]Contained in an Instrument of Transfer which was registered in dealing No. V353101R on 6 April 1999.

AND the said Transferees for ourselves, our respective heirs, executors administrators and transferees and registered proprietor or proprietors for the time being of the lot hereby transferred and of each and every part thereof DO HEREBY and as separate covenants COVENANT with the said CENTRAL PROPERTIES NO. 1 PTY. LIMITED and other the registered proprietor or properties (sic) for the time being of the land comprised in the said plan of subdivision and each and every party thereof (other than the lot hereby transferred) that we will not:
(a)erect or cause or permit to be erected or remain erected on the land hereby transferred or any part thereof any building other than:
(i)one dwellinghouse having not less than 75% of all external walls (save for provisions for windows, doors fascias and gables) of brick or stone; and
(ii)usual outbuildings having front external walls facing a road or street of brick or stone; and
(iii)within the building envelope on Building Envelope Plan Stage 1 Ref. No: 5401/BE1 Version 1 prepared by Breese Pitt Dixon Pty. Ltd.…

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 Hermez v Karahan

Details

AGLC: Hermez v Karahan [2012] VSC 443
Case: [2012] VSC 443
Decision Date: 1 November 2012

CaseChat Overview and Summary

The matter involved an application by Hermez to remove a single dwelling restriction from a parcel of land in Victoria. Karahan opposed the application, arguing that the covenant was not obsolete and that its removal would substantially injure those entitled to its benefit. The case was heard in the Supreme Court of Victoria. The central legal issues revolved around whether the single dwelling restriction had become obsolete and, if not, whether its removal or modification would substantially injure those entitled to its benefit. The court needed to interpret the meaning of "obsolete" in the context of restrictive covenants and assess the potential harm to the neighbouring properties if the covenant was removed.

The court considered the evidence and arguments presented by both parties. It determined that the single dwelling restriction was not obsolete as it still served a purpose in maintaining the character of the neighbourhood. The court also held that removing or modifying the covenant would substantially injure the neighbouring properties, as it would potentially increase the density of development and alter the neighbourhood's character. Consequently, the court dismissed Hermez's application to remove the single dwelling restriction. The court's decision emphasised the importance of preserving the integrity of restrictive covenants in maintaining the character of a neighbourhood and protecting the interests of neighbouring property owners.

Orders