JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 & 22 September 2017
DATE OF JUDGMENT:	3 October 2017
CASE MAY BE CITED AS:	Jiang v Monaygon Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VSC 591

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PROPERTY – Restrictive covenant – Two covenants over two separate properties – Application to discharge or modify restrictions in covenants pursuant to the Property Law Act1958 (Vic), s 84 – Modification of both covenants to allow for excavation works to be carried out ‘for residential development or use of the land’ – One covenant contains single dwelling restriction – Whether discharge or modification will not substantially injure the persons entitled to the benefit – Application granted – Applicable legal principles – Property Law Act1958, s 84(1)(c) & (2)(b).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Rimmer	Aughtersons Lawyers Pty Ltd
For the Defendant	Mr T Alexander with Mr H Kirimof	Dandanis & Associates

TABLE OF CONTENTS

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

The covenants..................................................................................................................................... 1

The plaintiff’s evidence.................................................................................................................... 3

The objector......................................................................................................................................... 3

The location of the subject land...................................................................................................... 5

The neighbourhood........................................................................................................................... 6

The proposed development............................................................................................................. 8

Planning and building controls...................................................................................................... 9

Applicable law.................................................................................................................................. 10

The construction of restrictive covenants................................................................................ 10
Discharge or modification......................................................................................................... 10
Section 84(1)(c)................................................................................................................... 10

Submissions and consideration.................................................................................................... 13

The single dwelling restriction.................................................................................................. 13
The other beneficiaries............................................................................................................... 24
The quarrying restriction........................................................................................................... 26

Residual Discretion......................................................................................................................... 28

Conclusion......................................................................................................................................... 29

HIS HONOUR:

Introduction

The plaintiff is the sole registered proprietor of the land situate at and known as 31 High Street Road, Ashwood, Victoria (‘31 High’)[1] and 33 High Street Road, Ashwood (’33 High’).[2] The plaintiff applies by amended originating motion[3] to modify covenants over the properties under s 84(1) of the Property Law Act 1958 (‘the PLA’) to enable their consolidation and the construction on the consolidated land of a three storey apartment building with a basement car park.
[1]Certificate of Title Volume 6715 Folio 845.
[2]Certificate of Title Volume 11638 Folio 177 (this was purchased on 22 August 2016, the date of settlement, although the contract of sale was entered into on 7 May 2016).
[3]Filed on 8 December 2016 to add the defendants, pursuant to the orders of Derham AsJ made 6 December 2016. The initial originating motion was filed 19 July 2016.

The covenants

31 and 33 High (‘the subject land’) are lots 20 and 21 on Plan of Subdivision 12951 (‘Plan of Subdivision’). Both properties were created out of a larger parcel of land described in Certificate of Title Volume 5807 Folio 224 (‘the Parent Title’).

The covenant over 31 High was created by Instrument of Transfer 1923252[4] (‘the first covenant’). The substance of the restriction in the covenant is twofold:

(a)…

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 Jiang v Monaygon Pty Ltd

Details

AGLC: Jiang v Monaygon Pty Ltd [2017] VSC 591
Case: [2017] VSC 591
Decision Date: 3 October 2017

CaseChat Overview and Summary

In the matter of Jiang v Monaygon Pty Ltd, the dispute before the court concerned restrictive covenants over two separate properties, as well as an application to modify or discharge those covenants in accordance with section 84 of the Property Law Act 1958 (Vic). The applicant sought to modify both covenants to allow for excavation works to be carried out ‘for residential development or use of the land’. One of the covenants contained a single dwelling restriction, and the court was required to determine whether the discharge or modification of the covenants would substantially injure the persons entitled to the benefit. The court found that the applicant had satisfied the criteria under section 84(1)(c) and (2)(b) of the Act, and granted the application. The court found that the proposed modifications would not substantially injure the persons entitled to the benefit of the restrictive covenants, and thus allowed the application to proceed.

The legal issues in this case centred around the interpretation and modification of restrictive covenants over two separate properties, and the criteria set out in section 84 of the Property Law Act 1958 (Vic) for discharging or modifying such covenants. The applicant argued that the proposed modifications to the restrictive covenants would not substantially injure the persons entitled to the benefit, and that the modifications were necessary to allow for excavation works to be carried out for residential development or use of the land. The respondent argued that the modifications would substantially injure the persons entitled to the benefit of the restrictive covenants, and that the applicant had not satisfied the criteria set out in section 84 of the Act.

The court found that the applicant had satisfied the criteria set out in section 84 of the Act, and that the proposed modifications to the restrictive covenants would not substantially injure the persons entitled to the benefit. The court considered the nature and purpose of the restrictive covenants, as well as the potential impact of the proposed modifications on the persons entitled to the benefit. The court found that the modifications would not substantially injure the persons entitled to the benefit, and that the applicant had demonstrated a legitimate need for the modifications in order to carry out excavation works for residential development or use of the land. The court also noted that the modifications would not fundamentally alter the character of the land or the purpose of the restrictive covenants, and that the benefits of the modifications would outweigh any potential harm to the persons entitled to the benefit. The court therefore granted the application, and modified the restrictive covenants to allow for the proposed excavation works.

Orders