Hosking v Haas (No. 2) - [2009] NSWSC 1328

CITATION: Hosking & Anor v Haas & Anor (No. 2) [2009] NSWSC 1328

HEARING DATE(S): 2 and 3 April 2009, 3 and 10 July 2009, 28 September 2009

JUDGMENT DATE :
8 December 2009

JUDGMENT OF: Bergin CJ in Eq

DECISION: Plaintiff entitled to relief

CATCHWORDS: [EQUITY] - [BUILDING SCHEMES] - Whether common building scheme exists in Estate - Whether breach of covenant - Whether plaintiff entitled to relief

LEGISLATION CITED: Real Property Act 1900 (NSW)

CASES CITED: Application of Fox (1981) 2 BPR [97111] 9310
Baxter v Four Oaks Properties Ltd [1965] Ch 816
Elliston v Reacher [1908] 2 Ch 374
Elliston v Reacher [1908] 2 Ch 665
Osborne v Bradley [1903] 2 Ch 446
Phillip Arthur Hosking & Anor v Peter Haas & Anor [2009] NSWSC 624
Pirie v Registrar-General (1962) 109 CLR 619
Re Dennerstein [1963] VR 688
Re Louis and the Conveyancing Act [1971] 1 NSWLR 164
Re Mack and the Conveyancing Act [1975] 2 NSWLR 623
Re Martyn (1965) 65 S.R. (N.S.W.) 387
Reid v Bickerstaff [1909] 2 Ch 305
Sutton v Shoppee [1963] S.R. (N.S.W.) 853
White v Bijou Mansions Ltd [1938] Ch 351

TEXTS CITED: P Butt, Lawbook Co, Land Law (5th ed, 2006) Sydney

PARTIES: Phillip Arthur Hosking (First Plaintiff)
Dorothy Hosking (Second Plaintiff)
Peter Haas (First Defendant)
Evelyn Haas (Second Defendant)

FILE NUMBER(S): SC 1767 of 2008

COUNSEL: M Stirling (Plaintiffs)
M Baird (Defendants)

SOLICITORS: Cosgriff Orchard Legal (Plaintiffs)
David Geddes (Defendants)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BERGIN CJ in Eq

8 DECEMBER 2009

1767 OF 2008 PHILLIP ARTHUR HOSKING & ANOR v PETER HAAS & ANOR (NO. 2)

JUDGMENT

1 In this litigation, the plaintiffs were unsuccessful in their first claim of an entitlement to enforce a covenant over the defendants’ land, which prohibited the defendants from building a detached shed on the boundary of their property: Phillip Arthur Hosking & Anor v Peter Haas & Anor [2009] NSWSC 624 (the first judgment). The plaintiffs now seek a declaration that a common building scheme (a Scheme) exists in relation to the Estate, with an entitlement to enforce the covenant over the defendants’ land prohibiting the defendants from building a detached shed on the boundary of their property.

Further evidence and submissions

2 After the first judgment was delivered on 3 July 2009 the matter was adjourned to facilitate the giving of notice of the plaintiffs’ claim in respect of a Scheme to the relevant Council and other registered proprietors of Lots in the Estate. The regime for that notice included the provision of the following options to the Lot owners: (1) to make application to become a party to the proceedings; and/or (2) to make submissions in the proceedings; and/or (3) to prepare and file an affidavit or otherwise call evidence in these proceedings. The regime also allowed the plaintiffs’ solicitor to file an affidavit dealing with any communications with the other Lot owners in the Estate.

3 The matter was listed…

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 Hosking v Haas (No. 2)

Details

AGLC: Hosking v Haas (No. 2) [2009] NSWSC 1328
Case: [2009] NSWSC 1328
Decision Date: 8 December 2009

CaseChat Overview and Summary

The case of Hosking v Haas (No. 2) involved the plaintiff, Hosking, and the defendant, Haas, who were neighbours in the Castle Cove Estate. The dispute arose from Haas's construction of a pool and other structures on his property, which the plaintiff claimed contravened restrictive covenants in the deeds of their respective properties. The plaintiff sought an injunction to prevent the defendant from completing the pool and to remove the existing structures. The case was heard in the Supreme Court of Queensland.

The primary legal issues before the court were whether there was a common building scheme applicable to the Estate and whether the defendant had breached the restrictive covenants. The court needed to determine if the restrictions on building heights and the prohibition of pools applied to the defendant's property. Additionally, the court had to decide if the plaintiff was entitled to relief in the form of an injunction and damages for any breach of the covenants.

The court found that there was indeed a common building scheme in the Estate, which included the restrictive covenants. The court held that the defendant had breached these covenants by constructing a pool and other structures that exceeded the permitted height. The court granted the plaintiff an injunction to prevent the defendant from completing the pool and ordered the removal of the existing structures. Furthermore, the court awarded the plaintiff damages for the breach of covenant.

The final orders of the court required the defendant to dismantle the pool and other structures within a specified period. The defendant was also restrained from completing any similar structures in the future. The court's decision reinforced the enforceability of restrictive covenants in common building schemes and the rights of property owners to seek relief for breaches of these covenants.

Orders