Manderson v Wright (No 2) - [2018] VSC 162

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST

S CI 2016 00839

WARWICK ALEXANDER MANDERSON	Plaintiff
v
VICKI LOUISE WRIGHT	Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	14-17 November 2017
DATE OF JUDGMENT:	12 April 2018
CASE MAY BE CITED AS:	Manderson v Wright (No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 162

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PLANNING AND ENVIRONMENT – Interpretation of restrictive covenant – Defendant admitted breach of restrictive covenant – Appropriate remedy for admitted breach.

REMEDIES – Injunction - Breach of restrictive covenant - Mandatory injunction – Whether plaintiff’s conduct disentitles him to relief sought - Whether Lord Cairns Act damages should be awarded – Application of the ‘good working rule’ from Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 – Whether mandatory injunction would be oppressive to defendant – LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490, Break Fast (2007) 20 VR 311 considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Raven, Raven & Associates
For the Defendant	Ms L Hicks	Best Hooper

HIS HONOUR:

Introduction

The Warrenbeen Court estate (‘Estate’) was originally a contiguous area of approximately 8 hectares of Coastal Moonah Woodland (‘CMW’) within a dairy farm. Now within the Barwon Heads township boundaries, it was subdivided into 14 lots by plan of subdivision 142071E that was first registered on 20 September 1999.

The plaintiff, with his wife, are, and have been since 22 March 2005, the registered proprietors of lot 5 in the Estate, the land described in Volume 10546 Folio 031 of the Register. The block is approximately 3876 m². The defendant is, and has been since 31 October 2006, the registered proprietor of lot 6, the land described in Volume 10546 Folio 031 of the Register. This block is approximately 3892 m². The western border of the plaintiff’s block is the eastern border of the defendant’s block. The parties are neighbours. The street address is Warrenbeen Court.

The titles to the lots in question were created by stage 2 of the subdivision that was registered on 27 September 2000.

Each lot in the subdivision (1-14 inclusive) is subject to restrictive covenant PS412071E registered on the titles on 20 September 1999, which benefits and burdens all of the lots in the subdivision. The covenant creates two restrictions, of which the second restriction is presently relevant. That restriction expressly prohibits lot owners in the subdivision from developing their lot other than in accordance with an approved neighbourhood design plan pursuant to Planning Permit 1057/97. One must look outside the plan of subdivision at both the planning permit and the neighbourhood design plan to properly understand the restriction that was imposed. The substance of restriction No 2 is found in the approved neighbourhood design plan which prohibited the erection of a building outside a defined building envelope. I will come to those documents in due course.

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 Wright (No 2)

Details

AGLC: Manderson v Wright (No 2) [2018] VSC 162
Case: [2018] VSC 162
Decision Date: 12 April 2018

CaseChat Overview and Summary

In the case of Manderson v Wright (No 2), the parties were Manderson and Wright, embroiled in a dispute over a restrictive covenant. The issue at hand was the appropriate remedy for the breach of this covenant by Wright, who had admitted to the breach. The matter was heard in the Supreme Court of Victoria. The court was tasked with determining the correct remedy for the admitted breach of the restrictive covenant, particularly whether an injunction should be granted and if damages under the Lord Cairns Act should be awarded instead. The court also considered whether the plaintiff’s conduct disentitled him to the relief sought, and if a mandatory injunction would be oppressive to the defendant.

The court considered the principles set out in Shelfer v City of London Electric Lighting Co, where the ‘good working rule’ was established, indicating that damages may be awarded instead of an injunction if the harm caused by the breach is quantifiable and the injured party can be adequately compensated by money. Additionally, the court assessed whether the plaintiff’s conduct warranted a denial of injunctive relief, and whether enforcing a mandatory injunction would cause undue hardship to the defendant. References to previous cases such as LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd and Break Fast highlighted the balance between enforcing covenants and considering the circumstances of the parties involved.

Upon thorough deliberation, the court determined that an injunction was appropriate in this instance. It was concluded that the plaintiff’s conduct did not disentitle him to the relief sought and that the enforcement of the restrictive covenant was necessary to uphold the terms of the agreement. Additionally, the court found that damages under the Lord Cairns Act were not a suitable remedy in this case, as the harm caused by the breach was not quantifiable in monetary terms. Consequently, the court issued a mandatory injunction, compelling Wright to comply with the restrictive covenant as originally intended.

The final orders of the court mandated that Wright must adhere to the restrictive covenant in question, ensuring compliance with the terms set out in the original agreement. This decision underscored the importance of upholding restrictive covenants to maintain the integrity of property agreements and the need for courts to balance the enforcement of such covenants with the practicalities and circumstances of the parties involved.

Orders