Levi v Spicer

Levi was the owner of a property in an area subject to restrictive covenants, including one that required any garage to be built with brick and tile. Levi sought to build a colourbond garage, but a neighbour, Spicer, objected. Levi applied to the Supreme Court under section 89(1)(c) of the Conveyancing Act 1919 (NSW) for an order modifying the restrictive covenant to permit the construction of a colourbond garage. Spicer opposed the application. The court had to determine whether the modification was appropriate under the statute.

The court considered whether the modification would be reasonable in the circumstances and whether it would materially affect the use and enjoyment of the neighbour’s property. The court found that the modification would not be reasonable because the essence of the covenant would be altered and it would materially affect Spicer’s property by changing the character of the neighbourhood. The court held that the modification would not be in the spirit of the original covenant and was not justified.

Accordingly, the court dismissed Levi’s application for modification. The court ordered that Levi pay Spicer’s costs of the application.