Hivance Pty Ltd v Moscatiello

In the case of Hivance Pty Ltd v Moscatiello, the dispute arose concerning a restrictive covenant imposed on a parcel of land located within a suburban neighbourhood in Victoria. The covenant restricted the land to a single dwelling. The plaintiff, Hivance Pty Ltd, sought to modify the covenant to allow for the construction of three dwellings on the land. The defendants, Moscatiello, opposed the application, arguing that modifying the covenant would cause substantial injury to the covenant beneficiaries and erode the neighbourhood’s special character. The matter was heard by the Supreme Court of Victoria, which needed to determine the legal issues pertaining to the modification of the covenant.

The primary legal issues before the court were whether Hivance had proven that the modification of the covenant would not cause substantial injury to the covenant beneficiaries and whether the neighbourhood retained an intact special character due to the network of single dwelling covenants. Additionally, the court had to consider whether the ‘horse had bolted’ in that existing multi-dwellings in the neighbourhood had already eroded any special character the covenant had previously assisted to maintain. The court referenced s 84(1)(c) of the Property Law Act 1958 (Vic) and the case of Randell v Uhl [2019] VSC 668 to guide its decision.

The court held that Hivance had not proven that the modification of the covenant would not cause substantial injury to the beneficiaries, and that the neighbourhood did retain a special character due to the network of single dwelling covenants. The court found that the presence of multi-dwellings in the neighbourhood had not entirely eroded the special character the covenant was intended to preserve. Consequently, the application to modify the covenant was dismissed. The court concluded that the existing multi-dwellings did not signify that the ‘horse had bolted,’ and the special character was still discernible and worth preserving. The court made no further orders beyond dismissing the application.