Manderson v Smith & Anor - [2021] VSC 878

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2020 03378

WARWICK ALEXANDER MANDERSON

Plaintiff

BENJAMIN GEORGE HARRISON SMITH

First Defendant

and

RACHAEL LOUISE SMITH

Second Defendant

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JUDGE:

Efthim AsJ

WHERE HELD:

Melbourne

DATE OF HEARING:

9 June 2021

DATE OF JUDGMENT:

2 July 2021

CASE MAY BE CITED AS:

Manderson v Smith & Anor

MEDIUM NEUTRAL CITATION:

[2021] VSC 878

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PLANNING AND ENVIRONMENT – Injunction – Breach of restrictive covenant – Whether boundary fence prohibited by restrictive covenant on title – Clare v Bedelis [2016] VSC 381 – Whether boundary fence is a ‘building’ – Manderson v Wright [2016] VSC 677 – de minimis breach of restrictive covenant.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr P R Best

Raven & Associates Lawyers

For the Defendants

Mr M D Townsend

Kings Lawyers

HIS HONOUR:

1         In this proceeding the plaintiff, Warwick Alexander Manderson, applies for a mandatory injunction compelling the defendants, Benjamin George Harrison Smith and Rachael Louise Smith, to remove at their cost a fence constructed on their land which the plaintiff asserts is in breach of a restrictive covenant. In the alternative, the plaintiff seeks damages but only in the event a mandatory injunction is not granted.
Background
2         The plaintiff is a registered proprietor of the land at 14-15 Warrenbeen Court, Barwon Heads. The defendants are the registered proprietors of the land at 10-11 Warrenbeen Court, Barwon Heads. The plaintiff and the defendants are situated in an estate known as the Warrenbeen Estate and it is defined by land shown in Plan of Subdivision 412071E. That estate was developed as a 14-lot estate pursuant to planning permit 1057/97 in two stages between 1997 to 2002.
3 The covenant was created upon the registration of the Plan of Subdivision on 20 September 1999 by operation of s 24 of the Subdivision Act 1988 (Vic) (‘the Covenant’). The Covenant applies to Lots 1 to 14 in the Warrenbeen Estate. It provides:
1         the owners of Lots 1 to 14 (all inclusive) shall not allow the erection of more than one dwelling on any single lot or further subdivision of any lot;
2         the owners of Lots 1 to 14 (all inclusive) shall not develop the land other than in accordance with an approved Neighbourhood Design Plan pursuant to Planning Permit No 1057/97.

4         The Covenant prevents:
1.        the erection of more than one dwelling on any lot in the Plan of Subdivision;
2.        further subdivision of any lot in the Plan of Subdivision; and
3.        development other than in accordance with the neighbourhood design plan approved pursuant to Planning Permit No. 1057/97.

5         Planning Permit 1057/97, issued on 19 January 1998 and amended on 10 August 1998 relevantly provides:
14.      The subdivider shall contribute to Council the full cost of a standard fence at the approved ruling rate at the time of payment for the construction of fences abutting the Council Reserves;
15.      The plan of…

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 & Anor

Details

AGLC: Manderson v Smith [2021] VSC 878
Case: [2021] VSC 878
Decision Date: 2 July 2021

CaseChat Overview and Summary

The case of Manderson v Smith & Anor involved a dispute between the plaintiff, Manderson, and the defendants, Smith and another party, concerning a boundary fence. The plaintiff sought an injunction to remove the fence, claiming it violated a restrictive covenant on the title. The case was heard in the Supreme Court of Victoria. The primary issue for the court was whether the boundary fence constituted a breach of the restrictive covenant, and if so, whether the breach was de minimis, warranting an injunction to remove it.

The court had to determine whether the boundary fence was prohibited by the restrictive covenant, as well as whether it could be classified as a ‘building’ under the restrictive covenant's terms. The court considered the relevant case law, specifically Clare v Bedelis [2016] VSC 381 and Manderson v Wright [2016] VSC 677, to interpret the restrictive covenant and assess the nature of the breach. The court examined the extent to which the boundary fence violated the covenant and whether it constituted a significant enough breach to warrant an injunction.

The court found that the boundary fence did breach the restrictive covenant, but the breach was considered de minimis. As a result, the court ruled that the injunction sought by the plaintiff was not necessary. The court determined that the boundary fence, while technically a breach of the covenant, did not significantly affect the property or the intended purpose of the covenant. Consequently, the court dismissed the plaintiff's application for an injunction.

Orders