Martin v Lindeman - [2024] VSC 452

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2023 05420

BETWEEN:

JOSHUA JOHN MARTIN & ANOR (according to the attached Schedule)	Plaintiffs
v
ANTON LINDEMAN & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2024
DATE OF JUDGMENT:	31 July 2024
CASE MAY BE CITED AS:	Martin v Lindeman
MEDIUM NEUTRAL CITATION:	[2024] VSC 452

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PROPERTY LAW — Real property — Section 84 of the Property Law Act 1958 (Vic) —Application for declaration that restrictive covenant does not benefit any land — Whether subject land is part of a building scheme — Whether knowledge of network of covenants in the absence of notice of the scheme on the certificate of title or in any other registered instrument noted on the certificate of title is sufficient to constitute notice of building scheme — Notice of building scheme and its extent must be present on the certificate of title or an instrument noted on the certificate of title — Application for declaration under s 84(2) of the Property Law Act 1958 (Vic) granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M Townsend of counsel	DSA Law – Lawyers & Consultants
For the Defendants	Mr A Lindeman of counsel	Muir Legal

TABLE OF CONTENTS

Introduction................................................................................................................................... 1
Material relied upon by the parties............................................................................................ 2
The Covenant................................................................................................................................. 2
Relevant facts................................................................................................................................. 4
The issues raised on the application......................................................................................... 12
Legislative provisions................................................................................................................. 13
Do the plaintiffs have standing to bring the application?..................................................... 13
Is the benefit of the Covenant annexed to any land?............................................................. 14
Is the Land subject to a building scheme?............................................................................... 20
Will the modification of the Covenant substantially injure the persons entitled to the benefit of the restriction?.......................................................................................................................... 26
Conclusion.................................................................................................................................... 27

HIS HONOUR:

Introduction

The plaintiffs are the registered proprietors of 55 Lesley Avenue, Point Leo, also known as the land in Plan of Consolidation 352654Y and more particularly described in Certificate of Title Volume 10001 Folio 287 (Land). The plaintiffs inherited this land from their mother, the previous registered proprietor. The Land is burdened by the restrictive covenant in Instrument of Transfer T485637G (Covenant). The Covenant, relevantly, restricts the owners of the Land from building more than one dwelling on the Land and from subdividing the Land.

The plaintiffs wish to subdivide the Land into two and build a dwelling on each subdivided lot. They have commenced this proceeding, asking the Court to make a declaration, pursuant to s 84(2) of the Property Law Act 1958 (Vic) (PLA) that the Covenant has no beneficiaries and is ineffective, and an order, pursuant to s 84(1)(c) of the PLA, discharging the Covenant.

Mr Anton Lindeman, Mrs Fiona Forrest and Mrs Angela Thorpe (the defendants) oppose the plaintiffs’ application. They argue that the plaintiffs have no standing to bring the application, that two of the defendants own properties that carry the benefit of the Covenant, or alternatively, that…

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 Martin v Lindeman

Details

AGLC: Martin v Lindeman [2024] VSC 452
Case: [2024] VSC 452
Decision Date: 31 July 2024

CaseChat Overview and Summary

Martin initiated legal proceedings against Lindeman seeking a declaration under Section 84(2) of the Property Law Act 1958 (Vic) that a restrictive covenant on Martin's land did not benefit any land. The case revolved around whether Martin's property was part of a building scheme, and if knowledge of a network of covenants without explicit notice on the certificate of title or any registered instrument was sufficient to constitute notice of the building scheme. The dispute was heard and determined by the Supreme Court of Victoria.

The central legal issues that the court needed to address were whether the subject land formed part of a building scheme and, if so, whether the mere knowledge of a network of covenants, in the absence of explicit notice on the certificate of title or any registered instrument, was adequate to constitute notice of the building scheme. Specifically, the court had to determine whether the notice of the building scheme and its extent had to be explicitly present on the certificate of title or an instrument noted on the certificate of title to bind the parties.

In reaching its decision, the court meticulously examined the evidence and applicable law. It concluded that the subject land was indeed part of a building scheme and that for a notice of the scheme to be effective, it must be explicitly noted on the certificate of title or an instrument noted on the certificate of title. The court found that mere knowledge of a network of covenants without explicit notice did not suffice. Consequently, the court granted Martin's application for a declaration under Section 84(2) of the Property Law Act 1958 (Vic) that the restrictive covenant in question did not benefit any land.

The final orders of the court were that a declaration be made pursuant to Section 84(2) of the Property Law Act 1958 (Vic) that the restrictive covenant on Martin's property did not benefit any land. This outcome effectively relieved Martin's land from the burden of the covenant, aligning with the court's interpretation of the statutory requirements for notice of a building scheme.

Orders