Manderson v Smith - [2021] VSCA 359

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0086

WARWICK ALEXANDER MANDERSON	Applicant
v
BENJAMIN GEORGE HARRISON SMITH	First Respondent
and
RACHAEL LOUISE SMITH	Second Respondent

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JUDGES:	BEACH and KENNEDY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 December 2021
DATE OF JUDGMENT:	17 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 359
JUDGMENT APPEALED FROM:	Manderson v Smith (Unreported, Supreme Court of Victoria, Efthim AsJ, 2 July 2021)

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PLANNING AND ENVIRONMENT – Application for extension of time to seek leave to appeal – Order dismissing application for grant of mandatory injunction requiring removal of fence – Whether boundary fence prohibited by restrictive covenant registered on title – Whether associate judge erred in finding de minimis incursion of boundary fence into lot – No real prospects of establishing error – Unnecessary to determine whether applicant also had ‘unclean hands’ – Extension of time refused – Manderson v Wright [2016] VSC 677, discussed – Clare v Bedelis [2016] VSC 381, applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P R Best	Raven & Associates Lawyers
For the Respondent	Mr M D Townsend	Kings Lawyers

BEACH JA
KENNEDY JA:

The applicant and the respondents are owners of property in a 14-lot estate known as the Warrenbeen Estate (‘the Estate’). The applicant is a registered proprietor of lot 5 (the land at 14–15 Warrenbeen Court, Barwon Heads), while the respondents are the registered proprietors of lot 3 (the land at 10–11 Warrenbeen Court, Barwon Heads).

A restriction is recorded on each of the titles to properties in the Estate which prohibits owners from developing the land, other than in accordance with an approved neighbourhood design plan (‘Restriction 2’). The relevant neighbourhood design plan (‘the NDP’) consists of a drawing showing lots with hatched and non-hatched areas. There is accompanying text, entitled ‘House siting policy’, which includes a prohibition against the location of buildings in the hatched areas, thereby designating a ‘building envelope’ in respect of each lot (in the non-hatched areas).

Notwithstanding that there is a boundary fence located on the front of the applicant’s property, he claims that the construction of the respondents’ front fence breaches Restriction 2. He thereby sought a mandatory injunction to compel the respondents to remove their front boundary fence.

An associate judge dismissed the applicant’s claim.[1] He found that Restriction 2, properly construed, allows the construction of a fence on the boundary lines, and to the extent that the fence crossed into the hatched area, it was de minimis.
[1]Manderson v Smith (Unreported, Supreme Court of Victoria, Efthim AsJ, 2 July 2021) (‘Reasons’).

The applicant applies for an extension of time in which to seek leave to appeal the associate judge’s decision. For reasons that follow, we consider that the associate judge was correct to dismiss the claim; that the application lacks merit; and that the application for extension of time should be refused.

Background
Genesis of Restriction 2

On 19 January 1998 planning permit number 1057/97 (‘the Permit’)…

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 Manderson v Smith

Details

AGLC: Manderson v Smith [2021] VSCA 359
Case: [2021] VSCA 359
Decision Date: 17 December 2021

CaseChat Overview and Summary

In the Supreme Court of Victoria, Manderson sought relief against Smith, claiming that a fence erected by Smith on the boundary between their properties violated a restrictive covenant. The dispute centred on the interpretation of a covenant prohibiting the construction of fences, and whether Smith's fence constituted a breach of this covenant. The application was heard by an associate judge, who found that the fence constituted a de minimis incursion into Manderson’s lot and dismissed Manderson’s application for a mandatory injunction to remove the fence.

The primary legal issue before the court was whether the fence erected by Smith contravened the restrictive covenant. This required the court to interpret the covenant and assess the extent of the incursion by the fence. A secondary issue was whether the associate judge had erred in finding that the incursion was de minimis, and whether this finding warranted an extension of time to seek leave to appeal. The court also considered whether Manderson had unclean hands, potentially barring his claim, though it did not find it necessary to definitively determine this point.

The court found that there were no real prospects of success in establishing that the associate judge had erred in finding that the incursion was de minimis. The court reasoned that the associate judge had correctly applied the principles of covenant interpretation and had properly assessed the extent of the incursion. The court also noted that even if Manderson had unclean hands, this did not necessarily bar his claim, but it was unnecessary to determine this issue given the outcome regarding the de minimis finding. Consequently, the application for an extension of time was dismissed. The court referenced Manderson v Wright to support its findings on the de minimis principle and applied principles from Clare v Bedelis to address the issue of unclean hands, albeit not definitively.

Orders