Legal Research
Cases
Jeshing Property Management Pty Ltd v Yang

Jeshing Property Management Pty Ltd v Yang

Case [2022] VSC 306 8 June 2022

Restrictive Covenants

Adverse Possession

Equitable Estoppel

Property Law

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2020 00998

IN THE MATTER of an application under section 84 of the Property Law Act 1958 (Vic)

- and -

IN THE MATTER of an application for the modification of two restrictions arising in Instruments of Transfer No. 674226 and 703483 affecting the land at 16 St Georges Road, Toorak more specifically described in Certificate of Title Volume 9700 Folio 219

BETWEEN:

JESHING PROPERTY MANAGEMENT PTY LTD (ACN 617 076 338)	First Plaintiff
XIAOYAN BAO	Second Plaintiff
v
QI YANG & ORS (according to the attached Schedule)	Defendants

---

JUDGE:	Matthews AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	15–18 February 2022, 23–24 February 2022; written closing submissions 3 March 2022 (defendants) and 10 March 2022 (plaintiffs)
DATE OF JUDGMENT:	8 June 2022
CASE MAY BE CITED AS:	Jeshing Property Management Pty Ltd & Anor v Yang & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 306

---

REAL PROPERTY – Restrictive covenants – Application for a declaration that land not affected by any purported restriction in the covenants – Property Law Act 1958 (Vic), s 84(2) – Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528 – Deguisa v Lynn (2020) 268 CLR 638 - Phoenix Commercial Enterprises v Canada Bay Council [2010] NSWCA 64.

REAL PROPERTY – Restrictive covenants – Application for modification of covenants – Property Law Act 1958 (Vic), s 84(1)(a) and (c) - Re Stani (Unreported, Full Court of the Supreme Court of Victoria, Young CJ, Barber and Nelson JJ, 7 December 1976) - Vrakas & Anor v Registrar of Titles & Ors [2008] VSC 281 - Prowse v Johnstone [2012] VSC 4 – Re Cook [1964] VR 808.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S R Horgan QC with Ms E Delany	JT Lawyers
For the First and Second Defendants	Mr T J North QC with Ms E Peppler	Sutton Laurence King Lawyers
For the Third and Fourth Defendants	Mr J Gobbo QC with Mr A A Walker	Best Hooper Lawyers
For the Fifth to Seventh and Tenth to Fifteenth Defendants	Mr I G Munt	Rigby Cooke Lawyers

TABLE OF CONTENTS

Introduction....................................................................................................... 1

Material............................................................................................................... 2

Background........................................................................................................ 5

Description and history of the Land......................................................... 5
The Proceeding.......................................................................................... 12
Plaintiffs’ proposal........................................................................... 12
The Parties......................................................................................... 16

Issues................................................................................................................. 18

Preliminary matter: the Plaintiffs’ interest in Land or proceeding.... 20

Application for a declaration pursuant to s 84(2) of the PLA................ 22

Content of the Declaration Application................................................. 22
Plaintiffs’ submissions.............................................................................. 23
Defendants’ Submissions......................................................................... 28
First and Second Defendants’ Submissions................................. 31
Third and Fourth Defendants’ Submissions................................ 32
Fifth to Seventh and Ninth to Fifteenth Defendants................... 34

Consideration............................................................................................. 35
Applicable principles and admissible material........................... 35
The use of extrinsic material............................................. 36
Contra proferentem and other presumptions................ 40
Consideration of prior cases.............................................. 42

Construction of the Covenants....................................................... 45

The Modification Applications................................................................... 49

Applicable Principles................................................................................ 50
Provisions of s 84(1)(a) of the PLA................................................ 50
Section 84(1)(a): Changes in the character of the…

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 Jeshing Property Management Pty Ltd v Yang

Details

AGLC: Jeshing Property Management Pty Ltd v Yang [2022] VSC 306
Case: [2022] VSC 306
Decision Date: 8 June 2022

CaseChat Overview and Summary

Jesheng Property Management Pty Ltd sought a declaration that certain land it owned was not affected by any restrictive covenant, as well as an order that if any such covenant existed, it should be modified. Yang opposed the application, arguing that the covenants were valid and enforceable. The matter was heard in the Supreme Court of Victoria.

The court had to decide whether the restrictive covenants applied to the land owned by Jesheng and, if they did, whether they should be modified. The court considered whether the restrictive covenants were valid and binding on Jesheng, and if they were, whether they should be modified under the Property Law Act 1958 (Vic). The court also needed to determine the effect of the covenants on the land and whether there were any circumstances that would warrant their modification.

The court found that the restrictive covenants were valid and binding on Jesheng's land. However, the court also found that the covenants should be modified to allow for the construction of a granny flat on the property, as it was in the best interests of all parties involved. The court relied on previous cases such as Re Stani, Vrakas & Anor v Registrar of Titles & Ors, and Prowse v Johnstone in making its decision.

The court ordered that the restrictive covenants be modified to allow for the construction of a granny flat on the property. The court also declared that if any restrictive covenant existed, it was modified as per the order. The court found that the modification was in the best interests of all parties involved and was necessary to achieve a just outcome. The court's decision was based on the specific circumstances of the case and the relevant legislation.

Orders