Jonnel Assocs Pty Ltd v De Bono
[2001] NSWSC 883
•4 October 2001
Reported Decision:
(2002) NSW ConvR 56-004
New South Wales
Supreme Court
CITATION: Jonnel Assocs Pty Ltd v De Bono [2001] NSWSC 883 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 4466/01 HEARING DATE(S): 4 October 2001 JUDGMENT DATE:
4 October 2001PARTIES :
Jonnel Associates Pty Limited (P)
Victor Lawrence De Bono (D)JUDGMENT OF: Hamilton J
COUNSEL : R J Colquhoun (P)
No appearance (D)SOLICITORS: J A Vaughan & Walker Smith (P)
No appearance (D)CATCHWORDS: REAL PROPERTY [430] - Restrictive covenants - Building and other schemes - Torrens system - Sheds erected in numbers and of materials contrary to covenant. LEGISLATION CITED: Conveyancing Act 1919 s88B DECISION: Injunction to demolish sheds granted.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
THURSDAY, 4 OCTOBER 2001
4466/01 JONNEL ASSOCIATES PTY LIMITED v DE BONO
JUDGMENT
: This is the final hearing of proceedings for injunctive relief relating to sheds erected by the defendant on Lot 36 in DP1005047 in Malcolm’s Road, Pampoolah near Taree. The plaintiff was the developer of this rural subdivision and brings the proceedings as the registered proprietor of Lot 32. Lot 36 was sold by the plaintiff to the defendant in 1999 and it was a condition of this sale, as of others in the subdivision, that there be a restriction on the use of the land sold by instrument under s 88B of the Conveyancing Act 1919. Lot 32, still held by the plaintiff, is one of the lots entitled to the benefit of that restriction. There is in evidence a search which shows that that restriction is in fact registered in the Land Titles Office. The search is a search of certificate of title folio identifier 36/1005047, which is the title to the defendant’s land. The terms of the restriction are as follows:
"3(a) No building other than a main building which shall be a private dwelling house and a second non-residential building shall be erected or permitted to remain on any lot burdened. No other building or structure shall be erected or permitted to remain on any lot burdened which does not share a common wall with part of the main building.
...
(f) That no non-residential building shall be erected or permitted to remain on the land unless constructed with brick, stone, concrete or metal colourbond [sic] sheeting."(e) That no building, structure or object shall be erected or permitted to remain on the lot burdened with external roof materials other than new and first quality terracotta tiles, concrete tiles or metal colourbond [sic] sheets.
2 The evidence shows that earlier this year the defendant has erected sheds on Lot 36 which contravene these restrictions. First, two small sheds were erected which were adjacent but separated. Upon protest by the plaintiff, the defendant joined these sheds by extending the roof between them so that, although the walled portions remain separate, they are under one continuous roof. I shall call this shed "the double shed". Subsequently, a further separate shed was erected. I shall call this "the single shed". Even if the double shed be regarded as one rather than two structures (which arguably it may be), the number of buildings now contravenes clause 3(a) of the covenant. Affidavit and photographic evidence show that the single shed has Colorbond roofing, but that otherwise the sheds contravene both subclauses (e) and (f), as the balance of the roofing and all of the walls are of unpainted corrugated iron.
3 Apart from joining the two earliest sheds by roofing, the defendant's response to numerous complaints of the plaintiff concerning these sheds has been various. The responses have included saying that the sheds would be painted with "Colorbond paint", whatever that may be. This probably would not remedy the breach, but in any event has not been done. Other responses include threatening to throw a rock at the car driven to the scene by Mr Darcy, a director of the plaintiff, when he went to complain to the defendant about the sheds, ignoring some of the plaintiff’s communications and, in response to others, saying that the proceedings would be defended. Despite this, the defendant, although called outside the Court, has not appeared in Court today. Equally, he did not appear upon the first return of the summons before the Court on 20 September 2001. Not only was the summons personally served on him, but he was informed by personal service of the adjourned appointment for the hearing of the summons today. The only excuse given by the defendant for his conduct, among his various replies to communications, is that he has a horse and that “animal welfare requirements” necessitated his building these various sheds for the shelter of his horse. The plaintiff's response has been conveyed to him that there is no objection to his sheltering his horse, but that it ought be done in a building that complies with the covenant, which on the face of the matter appears to be entirely possible.
4 The order actually sought by the plaintiff upon the evidence led before me today is for the demolition of the sheds by a day a fortnight hence. On the one hand, complete demolition of all the sheds may not be necessary for compliance with the covenant. Some part of the existing structures might be able to be included in one building which also complied with the requirements of clause 3(e) and (f). An appropriate order could be moulded. However, in view of the defendant's non-attendance at the hearing of these proceedings and uncooperative attitude generally, it seems to me that there is not much point in the Court attempting to mould any such order without some assurance that the defendant would be prepared to undertake a building programme that ensured compliance with that order. On the material as it stands, it seems to me that the order should be, as asked, for the demolition of the non-complying sheds. I shall reserve liberty to apply, which may be exercised by either party if there is some desire to modify those orders to produce some different result but, unless application is made, the order that I now make must be complied with by the defendant. Although the plaintiff has moved quite expeditiously in all the circumstances to remedy the breach of the restrictions, it seems to me that 14 days may not be a reasonable time for compliance with the order. In all the circumstances I propose to order that the sheds be demolished within four weeks from today.
5 The orders that I propose are as follows:
1 Order that the defendant on or before 1 November 2001 demolish the sheds erected by the defendant on Lot 36 in DP1005047 in Malcolm’s Road Pampoolah ("the property").
2 Order that the defendant by himself his servants and agents be restrained from erecting on the property any buildings or structures in contravention of the restrictions imposed by instrument created pursuant to s 88B of the Conveyancing Act 1919 on registration of DP1005047.
3 Liberty to either party to apply on three days' notice in relation to orders 1 and 2.
4 Order that the defendant pay the plaintiff's costs of these proceedings.
5 Order that the summons be otherwise dismissed.
6 Direct that these orders be entered forthwith.
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