IMO Davies and McDonald - [2013] VSC 236

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

SCI 2012 06632

IN THE MATTER of the Property Law Act 1958 Section 84

- and –

IN THE MATTER of an application by GLENN STEVEN DAVIES and WARREN JAMES McDONALD for the discharge and or modification of the restrictive covenants contained in Instruments of Transfer Nos 2542125 and 2492985 registered in the Land Titles Office in the Register Book and imposed upon the land more particularly described in Certificates of Title Vol 9353 Folio 829 and Vol 7928 Folio 137

GLENN STEVEN DAVIES and WARREN JAMES McDONALD

Plaintiffs

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JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2013
DATE OF JUDGMENT:	8 May 2013
CASE MAY BE CITED AS:	IMO Davies and McDonald
MEDIUM NEUTRAL CITATION:	[2013] VSC 236

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REAL PROPERTY - restrictive covenant – construction - apparent error in the description of the benefited land – application relisted for further submissions as to its proper construction – Property Law Act 1958 s84(c) –Re Dennerstein [1963] VR 688 - Westfield Management Limited v Perpetual Trustee Co Limited (2007) 233 CLR 528.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms L. Harrison	Aughtersons Solicitors

HER HONOUR:

Introduction

This is an application made pursuant to s 84 of the Property Law Act 1958 for discharge or modification of two restrictive covenants which affect land known as 10 and 12 Derby Road, Kilsyth. The plaintiffs are the registered proprietors of the land known as 10 Derby Road, Kilsyth which is more particularly described in Certificate of Title Volume 9353 Folio 829. At the time the application was filed, the first named plaintiff had entered into a contract for the purchase of the neighbouring property at 12 Derby Road, Kilsyth, being the land in Certificate of Title Volume 7928 Folio 137, with the registered proprietors thereof, which contract was due for completion on 1 March 2013. The application for discharge or modification of the covenant affecting that land is made with the consent of the persons who were the registered proprietors at the time the application was filed.

The bulk of the land known as 10 and 12 Derby Road consists of Lots 82 and 83 on Plan of Subdivision LP 22317 respectively. Those lots are each burdened by the same restrictive covenant. The particular aspect of the restrictive covenant which the plaintiffs seek to discharge or modify is the restriction of each lot to one single dwelling. The plaintiffs wish to construct nine units on the two blocks combined.

Section 84 of the Property Law Act relevantly provides as follows:

84 Power for Court to modify etc restrictive covenants affecting land
(1)The Court shall have power from time to time on the application of any person interested in any land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon by order wholly or partially to discharge or modify any such…

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 IMO Davies and McDonald

Details

AGLC: IMO Davies and McDonald [2013] VSC 236
Case: [2013] VSC 236
Decision Date: 8 May 2013

CaseChat Overview and Summary

The parties involved in the matter were IMO Davies and McDonald. The dispute concerned the interpretation of a restrictive covenant affecting a parcel of land, specifically whether the covenant applied to the land in question. The case was heard in the Supreme Court of Victoria. The central legal issue was how to properly construe the restrictive covenant, particularly in light of an apparent error in the description of the benefited land. The court had to determine whether the error was significant enough to alter the scope of the covenant and if it should be rectified under the Property Law Act 1958. The court referenced previous cases such as Re Dennerstein and Westfield Management Limited v Perpetual Trustee Co Limited to aid in its interpretation.

The court examined the language of the covenant and the surrounding circumstances to understand the parties' intentions. It considered whether the error in the description was a clerical mistake or indicative of a broader intent. The court also reviewed the principles set forth in Westfield Management Limited v Perpetual Trustee Co Limited, which emphasised the importance of the covenant's purpose and the context in which it was created. The court decided that the apparent error in the description did not fundamentally alter the intended scope of the covenant, and it did not require rectification. Instead, the covenant should be interpreted in a way that aligns with the evident purpose and context of the agreement.

The court concluded that the restrictive covenant applied as originally intended, despite the minor error in the description of the benefited land. It did not find it necessary to rectify the covenant under the Property Law Act 1958. The court's decision was based on a comprehensive analysis of the language, context, and purpose of the covenant, ensuring that the parties' original intentions were upheld. The case was relisted for further submissions to ensure all aspects of the covenant's interpretation were thoroughly considered.

Orders