Koller v Rice - [2011] VSC 346

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 04273 of 2010

IN THE MATTER OF AN APPLICATION PURSUANT TO S 84 OF THE PROPERTY LAW ACT TO DISCHARGE OR VARY A RESTRICTIVE COVENANT

SABINA MICHAELA KOLLER	Plaintiff
v
ROBERT ERIC RICE	Defendant

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JUDGE:	DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 July 2011
DATE OF JUDGMENT:	1 August 2011
CASE MAY BE CITED AS:	Koller v Rice
MEDIUM NEUTRAL CITATION:	[2011] VSC 346

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Real Property – restrictive covenant – modification or discharge – single dwelling on lot – whether plaintiff established circumstances enlivening power under the second limb of s 84(1)(a), Property Law Act 1958, or circumstances enlivening power under s 84(1)(c) – form of modification – Property Law Act 1958 (Vic) s 84(1) – Planning and Environment Act1987 (Vic) s 60(2)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M R Simon	Chadwicks The Law Firm
For the Defendant	In person

HIS HONOUR:

The Application

This is an application to discharge or vary a restrictive covenant. One restriction created by the covenant is a single dwelling restriction. The plaintiff has since about August 2003 been the owner of a property at 312 Morris Road, Hoppers Crossing, having purchased it as a vacant block. It is a corner block with frontage to Kingston Boulevard. The plaintiff erected a dwelling on the lot. The defendant is the plaintiff’s neighbour, residing at 310 Morris Road, immediately to the south of the plaintiff. The defendant purchased his property, which was developed with a dwelling, in December 2002.

The plaintiff desires to erect a second dwelling on her lot and, to that end, seeks the discharge or modification of the covenant. The court has power to act under s 84 of the Property Law Act 1958 (Vic). For the reasons which follow, I will modify the covenant.

The Evidence

Each property is a lot on registered plan of subdivision PS326075A. The plan was registered on 17 March 1994. Known as Kingston Gardens Estate, this subdivision of 19 lots (originally) and 1.531ha was a stage of a larger development. 312 Morris Road, which is lot 1368, has been burdened since 27 August 2001 with a restrictive covenant lodged under dealing number X697324K, an instrument of transfer. It is the land described in certificate of title Volume 10160 Folio 359. 310 Morris Road, which is lot 1367, is equally burdened.

The covenant is, relevantly, in these terms:

(a) that [the covenantor] will … not erect or build … more than one private dwelling house (together with usual outbuildings) … and such dwelling house and such outbuildings shall not be erected of any material other than brick, stone, concrete or brick veneer with a roof of tile, slate or colourbond material;
(b) that such dwelling house shall not have a living floor area … of less than 115 square metres …

The issue primarily concerns the restriction permitting only one private dwelling house per lot.

On…

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 Koller v Rice

Details

AGLC: Koller v Rice [2011] VSC 346
Case: [2011] VSC 346
Decision Date: 1 August 2011

CaseChat Overview and Summary

The case of Koller v Rice involved a dispute over a restrictive covenant placed on a property in Victoria. The plaintiff, Koller, sought to modify the covenant to allow for more than one dwelling on the property. The defendant, Rice, opposed the modification. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the plaintiff had established circumstances that would allow the court to exercise its power under section 84(1)(a) or (c) of the Property Law Act 1958 (Vic) to modify or discharge the restrictive covenant. The court also needed to determine the appropriate form of modification to the covenant.

The court found that the plaintiff had established circumstances that justified the modification of the covenant under the second limb of section 84(1)(a). The court noted that the original covenant was unreasonable and oppressive, and that modifying it would not cause injustice to the defendant. The court also found that the plaintiff had established the necessary circumstances under section 84(1)(c) to modify the covenant. The court determined that the appropriate form of modification was to allow for more than one dwelling on the property, but with certain restrictions to ensure that the modification did not cause substantial detriment to the defendant. The court noted that the modification should be in accordance with the Planning and Environment Act 1987 (Vic) s 60(2).

The court declared that the restrictive covenant in question be modified as outlined in the orders. The court substituted the expression ‘more than two private dwelling houses’ for the expression ‘more than one private dwelling house’ in part (a) of the covenant. The court also substituted the word ‘houses’ for the word ‘house’ in part (b) of the covenant, and added the words ‘in their combined total’ between the words ‘have’ and ‘a’. The court directed the Registrar of Titles to record the modification in the relevant certificate of title.

Orders

Orders of the court

1. I declare that the restrictive covenant lodged in dealing number X697324K in respect of the land described in certificate of title Volume 10160 Folio 359 of the Land Register maintained by the Registrar of Titles is modified as follows:

(a) in part (a) of the covenant, the expression ‘more than two private dwelling houses’ be substituted for the expression ‘more than one private dwelling house’.

(b) in part (b) of the covenant, the word ‘houses’ is substituted for the word ‘house’ and the words ‘in their combined total’ is added between the words ‘have’ and ‘a’.

2. I direct the Registrar of Titles, pursuant to s 103 of the Transfer of Land Act 1958, to forthwith record in respect of certificate of title Volume 10160 Folio 359 of the Register that the restrictive covenant lodged in dealing number X697324K in respect of the land described in the said certificate of title is modified as I have declared.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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