ITMA by Tu and Yew - [2018] VSC 738

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2018 01327

IN THE MATTER of an application pursuant to section 84 of the Property Law Act 1958 for the modification of a restrictive covenant

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IN THE MATTER of an application for the modification of the restriction arising under a covenant in a transfer of land registered no. C465254 dated 5 March 1966 affecting the land at 154 Through Road, Camberwell being lot 8 on plan of subdivision no. LP 25153 and being the land in folio of the Register volume 8628 folio 164 by:

JIM SENG TU and
LIN LIN YEW

Plaintiffs

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2018
DATE OF JUDGMENT:	27 November 2018
CASE MAY BE CITED AS:	ITMA by Tu and Yew
MEDIUM NEUTRAL CITATION:	[2018] VSC 738

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REAL PROPERTY — Restrictive covenant — Restriction to single dwelling and single storey — Restriction to brick masonry and tiled roofing — Established suburb with no nearby multiple dwellings or dual occupancies — Presence of double storey dwellings — Absence of similar type of covenant in neighbourhood — Limited number of beneficiaries of covenant — Proposed development of two dwellings having common wall using non masonry cladding and roofing — No objectors to application — Plaintiffs’ onus to show no substantial injury — Whether possible precedential effect is injurious — Injury to beneficiaries not demonstrable — Application to modify covenant allowed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr D P Lloyd	Aughtersons Lawyers Pty Ltd
No appearance by any objector

HIS HONOUR:

On 19 November 2018, at the conclusion of argument, the Court announced it would allow this application to modify a restrictive covenant on the plaintiffs’ land. The application was unopposed. It is not always the case in these applications, but there are features of the case that move the Court to give these reasons concerning a part of this well-established residential area to ensure residents in the nearby or greater neighbourhood, and uninvolved in this application, understand the basis of the decision and the confinement to its facts and its particular locality. I frequently read evidence in these application of residents who ring an applicant’s solicitor to enquire and say ‘Well if they bought a place with a covenant why don’t they stick with it?’

The plaintiffs are the registered proprietors of the land at 154 Through Road in Camberwell. The land is rectangular in shape with an area of 616.7 square metres. The land is about 150 metres away from an intersection with Riversdale Road. There are nearby shops and other businesses. Through Road is a major distributor road that extends in a southerly direction to Toorak Road.

The plaintiffs’ land is burdened by a restrictive covenant made in a transfer of land dated 5 March 1966. A covenant that restricts land usage is not a statutory imposition. It is a private promise to restrict land use…

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

AGLC: ITMA by Tu and Yew [2018] VSC 738
Case: [2018] VSC 738
Decision Date: 27 November 2018

CaseChat Overview and Summary

The Supreme Court of Victoria was presented with an application to modify a restrictive covenant affecting a property located at 154 Through Road, Camberwell. The plaintiffs, Jim Seng Tu and Lin Lin Yew, sought to modify a covenant restricting the land to a single dwelling of one storey with specific construction materials and roofing. The proposed development involved demolishing the existing single-dwelling and constructing two double-storey dwellings with non-brick cladding and flat roofing. The court had to decide whether the modification of the covenant would cause substantial injury to the beneficiaries of the covenant. The primary issue was whether the modification of the covenant would substantially injure the persons entitled to the benefit of the restriction, as per section 84(1)(c) of the Property Law Act 1958.

The court found that the application was unopposed, but the plaintiffs still had the onus to demonstrate that the proposed modification would not cause substantial injury to the covenant beneficiaries. The court noted that the covenant benefited only a minority of the lots in the subdivision, and most of the neighbourhood did not have similar covenants. There were already instances of double-storey dwellings and non-brick constructions in the area. The court concluded that the proposed modification would not cause substantial injury to the beneficiaries, as the neighbourhood did not have a cohesive pattern of single dwelling or single storey covenants. Additionally, the court emphasised that the proposed development would not significantly alter the neighbourhood's character, and the benefits of the covenant were debatable in the modern context of advanced building materials and standards.

Based on these findings, the court allowed the application to modify the restrictive covenant, enabling the plaintiffs to proceed with their proposed development of two double-storey dwellings with non-brick cladding and flat roofing. The court's decision was confined to its facts and the particular locality, ensuring that the modification would not cause substantial injury to the covenant beneficiaries.

Orders