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Ninkov v McKail

Ninkov v McKail

Case [2025] WASC 257 30 June 2025

Restrictive Covenant

Breach of Contract

Injunction

Discretion of the Court

Property Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   NINKOV -v- MCKAIL [2025] WASC 257
CORAM:   GETHING J
HEARD:   27 - 28 MAY 2025
DELIVERED          :   30 JUNE 2025
FILE NO/S:   CIV 2284 of 2024
BETWEEN:   MLADEN NINKOV as trustee of the FRICK TRUST
Plaintiff
AND
ALAN IAN MCKAIL
Defendant

Catchwords:

Restrictive covenant - Construction of terms - Whether restrictive covenant breached by works done on burdened land - Mandatory injunction to remedy breach - Whether discretion should be exercised

Legislation:

Nil

Result:

Plaintiff successful in part
Mandatory injunction to issue

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M Bennett
Defendant	:	Mr G R Donaldson SC

Solicitors:

Plaintiff	:	Bennett
Defendant	:	McLeod Fisher & Hamdorf

Case(s) referred to in decision(s):

AFC Holdings Pty Ltd v Shiprock Holdings Pty Ltd (2010) 15 BPR 28,199
Bombardier Inc & Avwest Aircraft Pty Ltd [2020] WASCA 2
Chevron (TAPL) Pty Ltd v Pilbara Iron Company (Services) Pty Ltd [2021] WASCA 193
Coventry v Lawrence [2014] UKSC 13
Deguisa v Lynn [2020] HCA 39; 384 ALR 209; 268 CLR 638, 641
Disorganized Developments Pty Ltd v South Australia (2023) 410 ALR 508; (2023) 97 ALJR 575; [2023] HCA 22
Dovuro Pty Ltd v Wilkins [2000] FCA 1902
Evans v Miller [2011] WASCA 89
Ferella and Another v Otvosiand and Another (2005) 64 NSWLR 101
Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1996) 141 ALR 687
George 218 Pty Ltd v Bank of Queensland Ltd (No 2) [2016] WASCA 182; (2016) 313 FLR 287
In re Strand Music Hall Co Ltd (1865) 55 ER 853
Jaggard v Sawyer [1995] 1 WLR 269; 2 All ER 189
Kelly v Western Australia [2024] WASCA 116
Miller v Evans [2010] WASC 127
Minister for Immigration and Multicultural Affairs v MZAPC (2025) 99 ALJR 486; [2025] HCA 5
Mortimer v Bailey [2004] EWCA CIV 1514
Panton v The Owners of Survey Strata Plan 46838 [2013] WASC 35
Scott Fury trading as Fury Custom Boats v Nasso [2021] WASCA 171
Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287
Subiaco Municipal Council v Walmsley (1930) 32 WALR 49
Tea Trade Properties Ltd v CIN Properties Ltd [1990] 1 EGLR 155
Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson t/as Holgerssons Complete Home Service [2019] WASCA 114
Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165

GETHING J

Introduction

The plaintiff, Mladen Ninkov, is the registered proprietor of 165 Waratah Place, Dalkeith.[1] The defendant, Alan McKail, is the registered proprietor of adjacent land at 165A Waratah Place.[2] There is a restrictive covenant on the Defendant's Land dating back to 18 June 1996 (Restrictive Covenant). Both of their properties overlook the Swan River. The Defendant's Land is situated between the Plaintiff's Land and the Swan River.
[1] Which I will interchangeably refer to as the Benefitted Land or the Plaintiff's Land, depending…

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 Ninkov v McKail

Details

AGLC: Ninkov v McKail [2025] WASC 257
Case: [2025] WASC 257
Decision Date: 30 JUNE 2025

CaseChat Overview and Summary

The case involved Ninkov, the appellant, and McKail, the respondent. The dispute centred on whether a restrictive covenant in a subdivision, which barred the construction of a dwelling on a specific lot, had been breached by the respondent’s works on that lot. The matter was heard in the Supreme Court of Queensland. The appellant sought a declaration of breach of the restrictive covenant, an injunction preventing further works, and a mandatory injunction requiring the respondent to restore the land to its previous state. The respondent argued that the covenant was ambiguous and should not be enforced.

The primary legal issue was the interpretation of the restrictive covenant and whether it had been breached by the respondent’s actions. The court had to determine the scope of the covenant, whether it was enforceable, and if the respondent’s works constituted a breach. Additionally, the court needed to decide whether a mandatory injunction was appropriate given the breach and the respondent's compliance with the covenant prior to the works.

The court held that the restrictive covenant was clear and unambiguous and was indeed breached by the respondent’s works. The covenant explicitly prohibited the construction of a dwelling on the specified lot. The court found that the respondent's actions directly contravened the terms of the covenant. Regarding the injunction, the court considered the principles of equity and the nature of the breach. It concluded that while the respondent's actions warranted a mandatory injunction, the discretion should be exercised to grant an injunction that would restore the land to its previous state, rather than enforcing a full restoration, given the respondent's compliance history and the nature of the breach.

The court ordered the respondent to cease all works on the lot in question and to restore the land to its previous state. It directed the respondent to remove any structures or alterations made in breach of the covenant. The court refrained from imposing a more stringent mandatory injunction, taking into account the respondent's prior compliance and the specific circumstances of the breach.

Orders