Nicolson v Registrar of Titles

[2005] VSC 271

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

No. 6432 of 2005

MEREDITH ANNE NICOLSON	Plaintiff
v
THE REGISTRAR OF TITLES	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 JULY 2005
DATE OF JUDGMENT:	2 AUGUST 2005
CASE MAY BE CITED AS:	NICHOLSON v THE REGISTRAR OF TITLES
MEDIUM NEUTRAL CITATION:	[2005] VSC 271

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Discharge of restrictive covenant – Effect of order of Master – "Wholly discharged" covenant.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Hanak	Wright Smiths Solicitors
For the Defendant	Mr W. Rimmer	Victorian Government Solicitor

HIS HONOUR:

1. By originating motion dated 6 June 2005, the plaintiff seeks the following relief:

(1)A declaration that the restrictive covenant contained in Instrument of Transfer 1899661 has been wholly discharged in respect of the land described in Certificates of Title Volume 09573 Folio 204 and Volume 09573 Folio 205 pursuant to the order of Master Brett made on 14 November 1985.

(2)An order pursuant to s.103 of the Transfer of Land Act 1958 (Vic) directing the Registrar of Titles to correct the Register in respect of Certificates of Title Volume 09573 Folio 204 and Volume 09573 Folio 205 by removing the restrictive covenant contained in Instrument of Transfer 1899661 from the said Certificates of Title.

1. The plaintiff is the registered proprietor of Certificates of Title Volume 09573 Folio 204 and Volume 09573 Folio 205, being land more particularly known as 7-9 Wimborne Avenue, Mount Eliza ("the land").  The land was formerly known as Lots 291 and 292 on Plan of Subdivision No. 10718 ("the plan of subdivision").

1. By Instrument of Transfer made on 9 November 1943, a restrictive covenant was created over four lots on the plan of subdivision including Lots 291 and 292.  The restrictive covenant is in the following terms:

"AND the said Joyce Thelma Barrett DOTH HEREBY for herself, her heirs, executors, administrators and transferees, registered proprietor or proprietors for the time being of the said land hereby transferred or any part or parts thereof COVENANT with the said Sequoia Proprietary Limited and its transferees, registered proprietor or proprietors for the time being of the land now comprised in the said Certificate of Title other than the said land hereby transferred that she or they will not affix or display any posters, bills or advertisements upon any hoarding, wall or fence on the said land hereby transferred and no hoarding or structure shall be erected on the said land hereby transferred for use as a bill posting or advertising station … and that no building other than one residential dwelling house shall be erected on any two of the said lots hereby transferred and that no building which has been commenced to be erected or constructed upon the said land hereby transferred shall remain in an incompleted state for more than twelve months after the date of such commencement and that she or they will not at any time hereafter use or permit or allow to be used the land hereby transferred or any part or parts thereof for quarrying or brick making operations or dig carry away or remove or permit or allow to be dug carried away or removed any marl, stone, earth, clay, gravel or sand from off the said land hereby transferred … "  ("the covenant")

1. It can be seen the covenant restrains advertising, the erection of more than one dwelling, the non-completion of a partially erected building, and the use of the land for quarrying.

1. In September 1985, proceedings were commenced by the registered proprietors of Lot 293, to discharge the covenant insofar as it affected their land ("the Manderson proceeding").

1. The Manderson proceeding was brought by the plaintiffs under s.84 of the Property Law Act 1958 (Vic) which gave the Court power to discharge or modify the covenant wholly or in part. Notice of the proceeding was given to all persons interested in the usual way.

1. On 14 November 1985, Master Brett made an order in the Manderson proceeding in the following terms:

"AND UPON BEING SATISFIED … and (sic.) that the proposed discharge of the abovementioned covenant will not substantially injure the persons and corporations entitled to the benefit of the restrictions I DO ORDER that … the restrictive covenant contained in Instrument of Transfer No. 1899661 be wholly discharged …"

1. The plaintiff contends that the effect of the order was to wholly discharge the covenant as it applied not only to the Manderson's Land but also to all land affected by it.

1. The Registrar of Titles has not accepted this contention because of doubt as to its correctness.

1. In my view the plaintiff's contention must fail.

(a)The land relevantly affected by the covenant is identified only in the heading of the order and not in the body thereof .  Nevertheless the heading records that the order is made in the matter of an application by the Mandersons being the registered proprietors of the land in Certificate of Title Volume 9527 Folio 367, being known as 11 Wimborne Avenue, Mount Eliza.

(b)The covenant is expressed to be "wholly discharged" because all four limbs of it are discharged with respect to the whole of the land forming the subject of the application. 

(c)The ground of the discharge is not the general one of "change in the character of the neighbourhood" (Property Law Act 1958 s.84(1(a))) but the specific ground that the proposed discharge will not substantially injure the persons and corporations entitled to the benefit of the restrictions (s.84(1)(d)).[1]  The basis of the discharge cannot be presumed to be valid for other lots.

(d)The power to discharge or modify a restrictive covenant under s.84(1) is exercisable only on the application of a person interested in the land affected by the restriction. Section 84(1) commences:

"(1)The Court shall have power from time to time on the application of any person interested in any land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon by order wholly or partially to discharge or modify any such restriction (subject or not to the payment by the applicant of compensation to any person suffering loss in consequence of the order) upon being satisfied –

…" (my emphasis)

[1]See Re Alexandra [1980] VR 55

1. Accordingly, subject to the further submissions of counsel as to the appropriate form of order I propose to dismiss the originating motion.

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