JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: MILLER -v- EVANS [2010] WASC 127
CORAM: HALL J
HEARD: 14-18 DECEMBER 2009, 12 FEBRUARY 2010
DELIVERED : 9 JUNE 2010
FILE NO/S: CIV 2093 of 2007
BETWEEN: COLLEEN MARGARET MILLER
Plaintiff
AND
ANTHONY RHYS EVANS
BERYL EVANS
Defendants
Catchwords:
Restrictive covenant - Construction of terms - Meaning of 'building' - Breach - Mandatory injunction to remedy breach - Whether discretion should be exercised - Delay - Acquiescence - Disproportion - Unclean hands - Oppressive or vindictive conduct - Whether damages in lieu a proper remedy
Legislation:
Nil
Result:
Judgment for the plaintiff
Mandatory injunction granted
Category: B
Representation:
Counsel:
Plaintiff: Mr S J Davis
Defendants: Mr G A Rabe
Solicitors:
Plaintiff: Curwood & Co Pty Ltd
Defendants: Stables Scott
Case(s) referred to in judgment(s):
Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060
Chatsworth Estates Co v Fewell [1931] 1 Ch 224
Dering v Earl of Winchelsea (1787) 1 Cox 318; 28 ER 1184
Dewhurst v Edwards (1983) 1 NSWLR 34
FAI Insurances v Pioneer Concrete Services Ltd (1987) 15 NSWLR 552
Gafford v Graham (1999) 77 P&CR 73
Goddard v The Midland Railway Co (1891) 8 TLR 12
Intel Corporation v Unwired Group [2008] FCA 1927
Jaggard v Sawyer (1995) 2 All ER 189
Jessica Estates v Lennard [2007] NSWSC 1434
Kelsman v Imperial Tobacco Company of Great Britain and Ireland Ltd (1957) 2 QB 334
Leeds Industrial Co‑operative Society Ltd v Slack [1924] AC 851
Lindsay Petroleum Company v Herd (1874) LR 5 PC 221
Miller v Jackson [1977] QB 966
Moody v Cox (1917) 2 Ch R 71
Owen v O'Connor (1964) NSWR 1
Sharp v Harrison [1922] 1 Ch 502
Shaw v Applegate (1977) 1 WLR 970
Shelfer v City of London Electrical Lighting Co [1895] 1 Ch 287
Shepherd Homes Ltd v Sandham (1970) 3 All ER 402
Stockdale v Shire of Mundaring [2007] WASAT 34
Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Wakeham v Wood (1982) 43 P&CR 40
Waterhouse v Pas [1998] WASCA 236
Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45
Wood v Conway Corporation (1914) 2 Ch 47
Wooloton & Wilson Ltd v Richard Coston Ltd (1971) All ER 483
HALL J:
Introduction
Views of the Swan River are greatly valued by the residents of Minim Cove. The aesthetic pleasure of looking at the river is also one that can have real measurable economic value. The issue in this case is whether the defendants, Mr and Mrs Evans, have wrongfully deprived the plaintiff, Mrs Miller, of her views.
The plaintiff and the defendants are neighbours. Both properties are burdened by a restrictive covenant. The restrictive covenant limits what can be built near the rear boundaries of the properties. The rear boundaries are those which are in the direction of the river. Some years ago the defendants built retaining…
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- AGLC
- Miller v Evans [2010] WASC 127
- Case
- [2010] WASC 127
- Decision Date
CaseChat Overview and Summary
The primary issue was the interpretation of the term 'building' in the restrictive covenant, specifically whether it included dividing fences. Miller argued that the covenant applied to any structure built on the land, including dividing fences, while Evans contended that the covenant was limited to permanent structures such as houses and swimming pools. The court considered the purpose and object of the covenant, as well as the objective surrounding circumstances at the time of its creation. The court held that the term 'building' was intended to have a wide meaning, encompassing any structure or edifice built on the land, including dividing fences.
In reaching its decision, the court emphasised the importance of objective interpretation of the covenant in light of the Torrens system of title by registration. The court noted that the covenant was intended to provide a clear statement of the restrictions applying to future purchasers of the affected land and of the consequential benefits which would be enjoyed by neighbouring properties. The court held that the term 'building' was not limited to houses or walled and roofed constructions, but rather included any structure or edifice built on the land. The specific examples of swimming pools and swimming pool fences were intended to illustrate the wide ambit of the term, rather than limit its meaning. The court found that Evans had breached the restrictive covenant by erecting dividing fences on his property, and granted an injunction to remove the fences and awarded damages to Miller.
The court's decision in Miller v Evans highlights the importance of objective interpretation of restrictive covenants in light of the Torrens system of title by registration. The court emphasised the need to discern the meaning of the covenant from the text itself, without resorting to extrinsic material. The decision also underscores the importance of considering the purpose and object of the covenant in determining its meaning. The court's finding that the term 'building' had a wide meaning, encompassing any structure or edifice built on the land, including dividing fences, is likely to have significant implications for the enforcement of restrictive covenants in Victoria.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The parties agree that the ordinary principles of construction of contracts should be applied to the terms of the restrictive covenant. In this regard reference was made to Intel Corporation v Unwired Group [2008] FCA 1927 a case relating to the construction of a deed poll executed for the benefit of third parties. The plaintiff submitted that the process of construction involves discerning what a reasonable person would understand from the language used in the restrictive covenant having regard to the objective surrounding circumstances and the purpose and object of the deed: Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165, 179. In my view, the reluctance to have regard to the subjective intentions of the parties to an original deed is even more justified in the case of a document that is intended to be registered on the title of land. As the High Court noted in Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45 it is important to take into account the fact that the Torrens system of title by registration requires the maintenance of a publicly accessible register containing the terms of dealings with land under that system. That case involved the construction of an easement and at [39] Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said:The third party who inspects the Register cannot be expected, consistently with the scheme of the Torrens system, to look further for extrinsic material which might establish facts or circumstances existing at the time of the creation of the registered dealing and placing the third party (or any court later seized of a dispute) in the situation of the grantee. The restrictive covenant in this case was intended to provide a clear statement of the restrictions applying to future purchasers of the affected land and of the consequential benefits which would be enjoyed by neighbouring properties. It cannot have been expected that prospective purchasers or the owners of neighbouring properties would be required to enquire of Octennial or its legal advisors in order to determine the meaning of the terms of the restrictive covenant. If a clear and unambiguous meaning can be discerned from the face of the document there is no need, nor is it appropriate, to go beyond the text. In my view it is clear that the word 'building' in cl (e) of the restrictive covenant is intended to have a wide meaning. This is established by the fact that it is expressed to include swimming pools and swimming pool fences. It is evident that the word was not intended to be confined to houses or even walled and roofed constructions. The word is used in context in its wider sense as being a thing which is built; a structure or edifice: Shorter Oxford English Dictionary. There is nothing to suggest that the word 'building' does not cover dividing fences and indeed reference to swimming pool fences clearly implies that it does. Nor can it be said that the word 'building' should be read as being impliedly limited by the specific types referred to. That is because the types referred to are clearly intended to be merely examples of the broader class as is evident from the use of the word 'including'. This is not a case where general words follow specific words and are thus confined by that context: Waterhouse v Pas [1998] WASCA 236. To the contrary, in this case broad general words are followed by a small number of specific examples that illustrate that the general words have a wide ambit.