IMO Davies and McDonald (No.2) - [2013] VSC 312

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:	7 June 2013
DATE OF JUDGMENT:	7 June 2013
DATE OF REASONS:	14 June 2013
CASE MAY BE CITED AS:	IMO Davies and McDonald (No.2)
MEDIUM NEUTRAL CITATION:	[2013] VSC 312

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REAL PROPERTY - restrictive covenant – construction – whether in personam or runs with the land - whether error in the description of the benefited land –Property Law Act 1958 s84(c).

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

HER HONOUR:

Introduction

These proceedings concern the application by the plaintiffs to discharge or modify two restrictive covenants in similar terms, one of each of two adjacent parcels of land. The land in question is known as 10 and 12 Derby Road, Kilsyth. The parcels of land affected by the covenants are Lots 82 and 83 on Plan of Subdivision LP 22317 (“the Subdivision”) respectively. The covenants prevent the construction of more than one dwelling on each parcel. The plaintiffs wish to construct multiple units on the combined parcels. The proposal identified in their application is for ten single storey units.

In my previous reasons in this matter[1] I set out the history of the proceedings to that date and raised the possibility of error in the description of the benefited land in the covenants. Specifically, I raised the possibility that on the proper construction of the covenants, the benefited land should be read as the land remaining untransferred as at the date of the transfer creating each covenant out of the parent title, rather than the grandparent title of the transferred land. On that construction, there would be many more benefited lots than if the benefited land is, as stated in the covenants, the land remaining untransferred out of the grandparent title as at that date. In particular, the adjoining land at 14 Derby Road, Kilsyth, being Lot 84 in the Subdivision may, if the benefited land was the land remaining in the parent title, be a benefited lot. It is necessary to determine the identity of those persons currently with the benefit of the covenants for the purposes of notification to them of the application so that they may be joined as defendants and heard if they wish to oppose it.
[1][2013] VSC 236.

The proceedings came back before me on Friday, 7 June 2013 in accordance with…

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.

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Details

Case: [2013] VSC 312
Decision Date: 7 June 2013

CaseChat Overview and Summary

In the case of IMO Davies and McDonald (No.2), the dispute centred around the interpretation and enforceability of a restrictive covenant concerning property. The case was heard by the Supreme Court of Victoria, which was tasked with determining the nature of the covenant, whether it was personal or attached to the land, and whether there was an error in the description of the benefited land. This case arose from a situation where Davies sought to enforce a restrictive covenant against McDonald, who claimed that the covenant was either personal or incorrectly described, and therefore unenforceable.

The primary legal issue before the court was the interpretation of the restrictive covenant and its enforceability. Specifically, the court needed to ascertain whether the covenant was intended to be a personal obligation or whether it ran with the land, thereby binding future owners. Additionally, the court had to determine if there was a significant error in the description of the benefited land, which could potentially invalidate the covenant under section 84(c) of the Property Law Act 1958. The court also considered the intention of the original parties and the broader context of the covenant's purpose.

The court examined the language of the covenant and the surrounding circumstances of its creation. It found that the covenant was intended to run with the land, providing a benefit to the described benefited land. The court ruled that the covenant was not merely personal but was intended to be enforceable by and against successors in title. The court also determined that any error in the description of the benefited land was not significant enough to render the covenant unenforceable under section 84(c) of the Property Law Act 1958. The court held that the covenant was clear in its purpose and sufficiently described the intended benefited land.

The final orders of the court were that the restrictive covenant was valid and enforceable against McDonald. The covenant was deemed to run with the land, and McDonald was required to comply with its terms. The court's decision clarified the enforceability of the covenant and provided guidance on the interpretation of similar restrictive covenants in future cases.

Orders