Ninkov v McKail
[2025] WASC 257
•30 JUNE 2025
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 on the context.
[2] Which I will interchangeably refer to as the Burdened Land or the Defendant's Land, depending on the context.
Mr McKail became the registered proprietor of the Defendant's Land on 14 December 2023. Soon afterwards, he commenced construction work in his backyard. The work is incomplete, construction having stopped pending the resolution of this dispute. The work, if permitted to be completed, will comprise:
(a)a louvered pergola (Pergola);
(b)an above ground swimming pool (Pool);
(c)a 2650 mm high wall (Wall); and
(d)a set of steps leading to the Pool (Pool Steps).
(Works).
Mr Ninkov asserts that Mr McKail breached the terms of the Restrictive Convent by undertaking the Works, and raised this concern with him through his lawyers. The parties were unable to resolve their dispute amicably, so have sought the assistance of the Supreme Court.
Mr Ninkov seeks a mandatory injunction requiring Mr McKail to remove the Works on the basis that each item comprising the Works is in breach of the Restrictive Covenant.
Mr McKail asserts that none of the Works breach the terms of the Restrictive Covenant. If any item of the Works does breach, then, as a matter of discretion, the court should not grant a mandatory injunction requiring its removal, but rather should award nominal damages.
For the reasons which follow, I find that:
(a)the Pool, Wall and Pool Steps were not constructed in breach of the Restrictive Covenant;
(b)the Pergola was constructed in breach of the Restrictive Covenant; and
(c)a mandatory injunction should be made requiring the removal of the Pergola.
The trial
On 23 April 2025 I carried out a view of the Benefitted Land and the Burdened Land (View). The View was videoed, without sound, and a USB containing the video file was tendered at trial by consent.[3]
[3] Exhibit 21.
Prior to the trial, both parties filed opening submissions.[4]
[4] Plaintiff's Outline of Opening Submissions filed 16 April 2025 (Plaintiff's Submissions); Defendant's Outline of Opening Submissions filed 30 April 2025 (Defendant's Submissions).
The trial took place on 27 and 28 May 2025. At the commencement of the trial, a book of documents (Book of Documents) was tendered by consent.[5]
[5] With its contents becoming Exhibits 1 - 20. I will refer to pages of the Book of Documents as TB##.
Mr Ninkov gave evidence and was cross examined. He also called two other witnesses.
The first was Shane Simons, a licenced surveyor. Mr Simons produced a report dated 15 January 2025 (Simons Report).[6] He gave brief evidence in chief and was not cross-examined. His expertise as a surveyor was not challenged, and I accept him as an appropriately qualified expert.
[6] Exhibit 13 (TB 165 - 276).
The second was Andrew Booth, a registered building practitioner. Mr Booth produced a report dated 13 December 2024 (Booth Report).[7] It has some redactions as a result of rulings I made at a prior hearing. Mr Booth is an independent building inspector. His expertise was not challenged. Although his report is styled as providing 'expert opinion', he does not express any opinions. Rather, his report is more in the nature of a description of the Works through the lens of a builder. He is amply qualified to do so. The Booth Report contained a useful description of the Works, along with photographs. Mr Booth gave brief oral evidence and was briefly cross-examined.
[7] Exhibit 12 (TB 120 - 164).
Mr McKail also gave evidence and was cross-examined.
He also called Leonie Gardiner, his de-facto partner, who gave evidence and was cross-examined.
Factual findings prior to Mr McKail becoming the registered proprietor of the Burdened Land
The parties filed a statement of agreed facts, which had a number of annexures.[8] Based on the pleadings, evidence and submissions, a number of other facts were not in issue. I find the following facts proven on the balance of probabilities. Any time I refer to a finding of fact in other parts of these reasons, it is also a finding on the balance of probabilities.
[8] Statement of agreed facts filed 2 April 2025, which became Exhibit 32.
Mr Ninkov is a joint trustee of the Frick Trust (Trust).
Mr Ninkov, in his capacity as trustee of the Trust, is currently the beneficial registered owner of Benefitted Land, more specifically being Lot 16 on Diagram 28629.
Mr McKail is the registered owner of the Burdened Land, more specifically being Lot 17 on Diagram 28629.
The Burdened Land is adjacent to and contiguous with the Benefitted Land. Their orientation is shown on the map which is Annexure A to these reasons.[9]
[9] Exhibit 23, Annexure A.
The catalyst for the Restrictive Covenant being entered into was that the then registered proprietors of the Burdened Land wanted to sell the property. They had undertaken a survey of the Burdened Land which revealed that an extension to the house on that land (House) had been built 0.47 m into an area covered by a then existing restrictive covenant. The House was a 1950s house which had a Tuscan exterior put around it, which included what Mr Ninkov described as an 'alcove', being the offending construction.[10] Mr Ninkov agreed with the then owners to put a new restrictive covenant in place which allowed the alcove to remain. He did not receive any money or other consideration for agreeing to replace the old restrictive covenant.[11]
[10] The extent of which is seen in Exhibit 20 (TB 305).
[11] ts 27.5.25, pages 54 - 55, 60.
On 18 June 1996, a Deed of Restrictive Covenant was made between Drumgath Pty Ltd and Glarryford Pty Ltd, which at that time were the registered proprietors of the Burdened Land, and Keynes Investments Pty Ltd, which at that time was the registered proprietor of the Benefitted Land (which is what I have defined as the Restrictive Covenant).[12]
[12] Exhibit 1 (TB 1 - 4).
Keynes Investments Pty Ltd is and was at all material times a corporation:
(a)the directors of which were Mr Ninkov and Peggy Ninkov, his spouse; and
(b)the sole shareholder of which is Mr Ninkov.
On 8 October 1996, the Restrictive Covenant was registered against both the Defendant's Land and Benefitted Land under the Transfer of Land Act 1893 (WA) (TLA).[13]
[13] Exhibit 1 (TB 1 - 4); Exhibit 13 (TB 183).
The operative clause of the Restrictive Covenant (as registered) is in the following terms:
1.The Covenantor shall not without the prior written consent of the Covenantee:
(a)construct or erect or permit the construction or erection of any alteration addition or modification to any buildings or other structures on the Burdened Land as at the date hereof so as to increase the height of such buildings or other structures; and
(b)allow any future building or extension of any part of any existing building or structure on the Burdened Land to exceed AUSTRALIAN HEIGHT DATUM a height of thirteen point eight seven (13.87) metres above mean sea level Fremantle; and
(c)construct or erect or permit the construction or erection of any future building or extension of any part of any existing building or structure on the Burdened Land to be made or to remain upon that part of the Burdened Land coloured green on the plan annexed hereto ('the Restricted Area'); and
(d)allow any existing or future trees or vegetation located on the Restricted Area to grow to exceed a height of thirteen point eight seven (13.87) metres above mean sea level Fremantle.
For the purpose of sub‑paragraph 1(c) of the Restrictive Covenant, the Burdened Land coloured green on the plan annexed was and is an area of land on the northern side of the Burdened Land comprising the area from the rear boundary of the land, the width of the block, and 7.56 m into the block (Restricted Area). It is shown in the plan which is Annexure B to these reasons (though coloured orange).[14] In practical terms, the Restricted Area comprises the entirety of the backyard of the Burdened Land.
[14] Exhibit 13 (TB 182).
Mr Ninkov gave evidence that he had no idea what the height of 13.87 m Australian Height Datum (AHD) above mean sea level Fremantle related to. He did say that it was below the height of the existing house.[15] However, from the Simons Report, it is apparent that the height of the ground level under the Pergola is 10.47 m AHD, and the pergola is 3.17 meters above that, totalling 13.64 m AHD.[16] So 13.87 m AHD is just above the height of the Pergola.
[15] ts 27.5.25, page 61.
[16] Simons Report, pars 3.3.2 and 3.3.3, (TB 171).
As to the existing buildings or structures on the Burdened Land as at 18 June 1996, the principal building was the House.[17]
[17] ts 27.5.25, page 114. See also: Exhibit 12 (TB 133).
The only other structures (relevant for present purposes) were:[18]
(a)a masonry (brick) boundary wall between the Benefitted Land and the Burdened Land (Boundary Wall); and
(b)a masonry boundary wall at the rear of the Burdened Land (Rear Wall).
[18] ts 27.5.25, pages 113 - 115. See also: Exhibit 12 (TB 133).
The House, the Boundary Wall and the Rear Wall continue to be on the Burdened Land, and were evident at the View.
The House is not in the Restricted Area. The Boundary Wall and the Rear Wall are.
From at least 2001[19] until when Mr McKail took possession of the Burdened Land, there was a brick shed immediately in front of the Boundary Wall between the Burdened Land and the Benefitted Land (Shed). The Shed was not, however, an 'existing structure' at the point in time the Restrictive Covenant was entered into.[20]
[19] Exhibit 12 (TB 133).
[20] ts 27.5.25, page 114. See also: Exhibit 12 (TB 133).
Keynes Investments Pty Ltd transferred the Benefitted Land to Frick Pty Ltd on 18 August 1998.
Frick Pty Ltd transferred the Benefitted Land to Mr Ninkov on 7 June 2002 and he has been the registered proprietor of the Benefitted Land since that date. Mr Ninkov resides in the house on the Benefitted Land with his wife and their son.
At some point between January and April 2012 a timber pergola was constructed at the rear of the House (Old Pergola), within the Restricted Area. The timing of its construction is drawn from the fact that the Old Pergola is not evident in the aerial photographs annexed to the Booth Report from January 2012 but is evident in the aerial photograph taken in April 2012.[21] The Old Pergola is seen in the photographs which are at Annexure C [22] and Annexure D.[23] The Old Pergola is covered in a deciduous vine. Around the Old Pergola, and going down the river side of the House, were limestone pillars with wooded beams on top, which over time had become covered with a vine.
[21] Booth Report, pages 15 - 16 (TB 135 - 136).
[22] Exhibit 9 (TB 72).
[23] Exhibit 9 (TB 73).
Mr Ninkov was aware of the Old Pergola, but could not recall expressing any difficulty with, or objection to, it to his then neighbour.[24] Neither did he give his then neighbour consent to construct the Old Pergola pursuant to the terms of the Restrictive Covenant. [25] More generally he gave evidence that:[26]
And you didn't raise an issue in relation to that with anybody? - No. I didn't, because the - that's a deciduous vine, so it loses its leaves for half the year. So for half the year, you know, I liked Clem and Caroline, and the other half of the year, it was completely see through.
Did you say you liked them? - Yes. I liked them a lot.
And so, what, because you liked them, you didn't have any issue with the pergola? - I found that in life it's much easier to get on with your neighbours.
[24] ts 27.5.25, page 62.
[25] ts 27.5.25, page 67.
[26] ts 27.5.25, pages 66 - 67.
From the View, the evidence of Mr Ninkov, and the many photographs of both properties in evidence, I find that:
(a)both the Burdened Land and the Benefitted Land are within 100 m of the Swan River, there being only one further residence between the Burdened Land and the river foreshore;
(b)the Benefitted Land is at a higher elevation than the Burdened Land;
(c)the river side of the house on the Benefitted Land overlooks the House and the backyard of the House, that is, the Restricted Area; and
(d)the House impedes the view of the Swan River from the Benefitted Land.
Factual findings after Mr McKail became the registered proprietor of the Burdened Land
4.1 Facts which are not in issue
Again, based on the statement of agreed facts, pleadings, evidence and submissions, the facts in this section were not in issue and I find them proven. There are some factual disputes which I deal with in later sections of this part.
Mr McKail became the registered proprietor of the Burdened Land on 14 December 2023. I deal with his knowledge of the Restrictive Covenant at this date in s 4.6. He and Ms Gardiner moved into the House around the second or third week of January 2024.[27] When they moved in the Old Pergola and the Shed were on the Burdened Land. This position was as depicted in the photographs at Annexure C and D which were taken from the advertising material for the House.[28]
[27] ts 27.5.25, page 118.
[28] ts 27.5.25, pages 119, 121 - 124.
Soon after Mr McKail and Ms Gardiner moved in, Ms Gardiner had a conversation with Mr Ninkov. She was in the backyard at the clothesline. It was a very brief conversation which went no further than introductions and words to the effect that they would chat another time.[29]
[29] ts 27.5.25, pages 74 - 76 (Ninkov); ts 28.5.25, page 190 (Gardiner).
On moving in, Mr McKail initially intended to keep the Old Pergola. However, on closer inspection, he formed the view that the Old Pergola and the limestone pillar structures were unsafe and had to be demolished.[30]
[30] ts 27.5.25, pages 120 - 121.
Mr McKail engaged A1 Pools to construct the Pool. It submitted an application for a building permit to the City of Nedlands. That application was approved on 28 March 2024.[31] He also engaged Sola Shade Pty Ltd to construct the Pergola. That company also submitted an application for a building permit to the City of Nedlands. Their application was approved on 3 April 2024.[32] Mr McKail did not commence any demolition work until he received both building permits.[33]
[31] Exhibit 3 (TB 12 - 27).
[32] Exhibit 3 (TB 28 - 40).
[33] ts 27.5.25, pages 126 - 127; ts 28.5.25, pages 158, 163 - 164.
Mr McKail then commenced demolition works. He did so no later than Sunday 7 April 2024, though more likely on Saturday 6 April 2024.[34] The demolition work included removing the Old Pergola, the Shed, a water feature in front of the Shed and the tiled floor of the outside area. All this work has been done.[35]
[34] ts 28.5.25, page 164; Exhibits 26 and 28.
[35] ts 27.5.24, pages 126 - 127.
There is a dispute as to whether or not there was one or two conversations in April, after demolition work had commenced, between Mr Ninkov and one or more of Mr McKail, Ms Gardiner and her son Ben. I deal with this dispute in s 4.2 - s 4.5.
Once demolition work was complete, construction of the Pergola, the Pool, the Wall and the Pool Steps began. I go into more detail about these constructions later in the reasons. At this stage, it is sufficient to find that:
(a)virtually all of the Pool and the Wall, and all of the Pergola and the Pool Steps, are located in the Restricted Area;[36] and
(b)none of the Works, when complete, will exceed the 13.87 m height limit.[37]
[36]Simons Report, par 3.3.4, 3.4.4 (apart from 0.1 m of the face of the structure nearest to the existing dwelling), 3.5.7 (save for 0.16 m of the wall structure nearest to the existing dwelling which extends outside the Restricted Area) (TB 171).
[37] Simons Report, pars 3.3.2, 3.4.2, 3.5.2 (TB 171).
Mr McKail spent:[38]
(a)$920.30 on demolition;[39]
(b)$20,000 on the construction of the Pergola;[40] and
(c)$27,418.24 on the construction of the Pool, Wall and Pool Steps.[41]
In addition, he estimated that he spent around 21 days of his time on doing this work, and Ms Gardiner's son Ben a further three days.[42]
[38] ts 28.5.25, pages 148 - 155.
[39] Exhibit 8 (TB 52, 53, 60).
[40] Exhibit 8 (TB 56).
[41] Exhibit 8 (TB 54, 55, 59, 61); Exhibit 25.
[42] ts 28.5.25, page 149.
Mr McKail did not seek Mr Ninkov's consent to undertake the construction or erection of the:[43]
(a)Pergola;
(b)the Pool;
(c)the Pool Steps; or
(d)the Wall.
He thought he did not need to.[44]
[43] ts 28.5.25, page 177.
[44] ts 28.5.25, page 178.
On 9 April 2024, Mr Ninkov contacted his lawyers (Bennett) for the first time in relation to this matter. This was by email in the following terms:[45]
Hi Martin:
Sorry to bother you with this matter but I was wondering whether you dealt with real property matters? If so, this is only a preliminary email.
My next door neighbour recently sold the property. I have had a restrictive covenant on the property since 1996 (see attached). The new owner is demolishing parts of the house on the northern end. It makes me think he may be thinking of extending the house and may be unaware of the restrictive covenant.
As a first step, do you think you could search my title and find the areas how cannot extend? That will at least provide me with the ammunition to go and see him if needs be and also allows you to begin further action should this occur in my absence overseas.
Thank you, as always.
Best regards,
Mladen.
The extent of the legal advice Mr Ninkov received was the subject of cross‑examination and is dealt with in s 4.7.
[45] Exhibit 19 (TB 300).
Between 1 May and 1 October 2024, Mr Ninkov was overseas for business, which was his usual practice. While he was away, his personal assistants would look after the Benefitted Land and provide broad updates as to what was going on.[46]
[46] ts 27.5.25, pages 56 - 57.
On 10 May 2024, one of Mr Ninkov's personal assistants, Samantha Hutchings, sent him an email attaching two photographs and a survey. He was informed: 'Cement has been poured into (what I assume will be) the location of the swimming pool'.[47]
[47] Exhibit 19 (TB 300); ts 27.5.25, page 58.
On 21 May 2024, Ms Hutchings sent Mr Ninkov an email with a 'progress picture'. He was informed: 'It looks like a pergola is starting to go up'.[48]
[48] Exhibit 19 (TB 301); ts 27.5.25, page 58.
On 21 May 2024, Mr Ninkov approved the appointment of a surveyor by Bennett to attend the Benefitted Land to verify the location and height of the Pergola.[49]
[49] Exhibit 19 (TB 302); ts 27.5.25, page 58.
On 23 May 2024, Mr Ninkov was informed by email from Mr Bennett that the initial report from the surveyor indicated that the Pergola was within the height restriction.[50]
[50] Exhibit 19 (TB 303); ts 27.5.25, page 105.
Mr Ninkov responded by email to Mr Bennett in the following terms:[51]
Dear Martin:
Good news. I don't need to have a fight I don't want to have. I will keep you updated with photos as construction progresses. Many thanks.
Best regards,
Mladen
[51] Exhibit 19 (TB 303); ts 27.5.25, page 105.
On 6 June 2024, Ms Hutchings sent Mr Ninkov an email with progress photo, and the comment: 'Not much progress over the past week and a half'.[52]
[52] Exhibit 19 (TB 301); ts 27.5.25, page 108.
Over the period from 9 April 2024 to 4 September 2024 there was regular email communication between Mr Ninkov and Bennett relating to the Restrictive Covenant.[53] The contents of those communications is the subject of legal professional privilege which has not been waived. Throughout this period Mr Ninkov was engaged in the process of obtaining legal advice in relation to a potential breach of the Restrictive Covenant by Mr McKail.[54]
[53] Exhibit 24, ts 27.5.25, pages 94 - 95.
[54] ts 27.5.25, page 95.
Mr McKail also wished to make renovations to the House. He submitted a development application for these renovations to the City of Nedlands on 8 August 2024. By this time the work on the Pergola and Pool was well advanced.[55]
[55] Exhibit 15 (TB 278 - 283); ts 27.5.25, pages 132 - 136.
The City of Nedlands in turn advised Mr Ninkov (or more accurately Frick Pty Ltd) of the development application lodged by Mr McKail, this being by letter dated 4 September 2024.[56] Ms Hutchings forwarded this letter and the plans to which it referred by email to Mr Ninkov.[57] In response, he provided instructions to Bennett to 'go ahead', which I understand to be instructions to raise the issue of a breach of the Restrictive Covenant.[58]
[56] Exhibit 2 (TB 5).
[57] Exhibit 19 (TB 302); ts 27.5.25, page 110.
[58] ts 27.5.25, page 58.
On 17 September 2024, Bennett sent a letter to Mr McKail.[59] This letter is in the following terms:
[59] Exhibit 23 (Statement of Agreed Facts and Annexures, Annexure B).
Frick Pty Ltd
I act on behalf of your neighbour, Frick Pty Ltd. My client is concerned to have received from the City of Nedlands notification of a development application submitted by you in respect of your property (165A (Lot 17) Waratah Place, Dalkeith).
The proposed development contravenes the restrictive covenant that burdens your land in favour of my client.
My client seeks your urgent assurance that you will not proceed with any development in breach of the restrictive covenant.
I enclose a copy of my letter to the City of Nedlands today.
My client strictly reserves its rights to protect the benefit it derives from its restrictive covenant.
If you have any queries, you should not hesitate to contact me or brief a lawyer to act on your behalf who can then contact me.
…
I note here that the proposed development related to the House, in particular the replacement of the roof of the House with a skillion roof.
On 9 October 2024, Mr McKail's lawyers, McLeod, Fisher & Hamdorf (McLeod) replied in the following terms:[60]
[60] Exhibit 23 (Agreed Facts, Annexure C).
165A (Lot 17) Waratah Place, Dalkeith - Development Application
1.We act for Alan McKail, the owner of 165A (Lot 17) Waratah Place, Dalkeith (Property), and refer to your letter to Mr McKail of 17 September 2024 regarding development application DA24-96975 made on 8 August 2024.
2.Mr McKail has amended the development application (Amended Application) so that the height of the roof of the main building will not be increased. We enclose a copy of the Amended Application.
3.The Amended Application is not in breach of the restrictive covenant that burdens the Property and benefits your client's property. The Amended Application will be submitted to the City of Nedlands next week.
4.Last, we note that a swimming pool and pergola have been permitted on the Property and we enclose a copy of the relevant building permits for those additions.
If you have any questions or wish to discuss the above, please let us know.
…
On 10 October 2024, Bennett sent another letter to McLeod in the following terms:[61]
[61] Exhibit 23 (Agreed Facts, Annexure D).
165A (Lot 17) Waratah Place, Dalkeith
Thank you for your letter of 9 October 2025. I am grateful that you have sent to me a copy of the building permit for the swimming pool and pergola. In addition to the swimming pool and the pergola, I note that your client has erected a shed attached to the party wall. Was this the subject of a building permit?
The restrictive covenant made 18 June 1996 provides expressly in paragraph 1(c):
1.The Covenantor shall not without the prior written consent of the Covantee:
(c)construct or erect or permit the construction or erection of any future building or extension of any part of any existing building or structure on the Burdened Land to be made or to remain upon that part of the Burdened Land coloured green on the plan annexed hereto ('the Restricted Area').'
It is unmistakably the case that the pool and the shed have been built in breach of that covenant. I would be grateful if you could provide your client's explanation for why he has undertaken this work in breach of the restrictive covenant and what he proposes to do to remedy that?
In respect of the amended application, my client will still express its concern at the lot boundary set-backs which will adversely affect the views from my client's property.
Please come back to me with your client's response to the clear breach of the restrictive covenant within 7 days from the date of this letter.
…
On 14 October 2024, McLeod wrote to Bennett in the following terms:[62]
[62] Exhibit 30 (citations omitted).
165A (Lot 17) Waratah Place, Dalkeith
We refer to your letter of 10 October 2024.
Garden Shed
A small garden shed, which stores tools, was recently erected on 165A (Lot 17) Waratah Place, Dalkeith (Property). It has a footprint of approximately 3m2. A building permit was not required.
Due to the size of the shed and the fact that a building permit was not required, our client mistakenly formed the view that its erection was permitted under the restrictive covenant. Our client apologises for this oversight. We would be grateful if your client would retrospectively provide their written consent to the garden shed.
Swimming pool
A swimming pool is not a 'building' and is not an extension of an existing structure. We therefore take the view that the construction of the swimming pool was not done in breach of the covenant.
Amended application
We note that the amended plans enclosed with our letter of 9 October 2024 do not propose any variations with the Residential Design Codes, in particular, the plans do not propose any variations to the design principles in regard to lot boundary setbacks.
…
On 29 October 2024, McLeod wrote to Bennett in the following terms in response to a letter of 22 October 2024 which is not in evidence:[63]
[63] Exhibit 31.
165A (Lot 17) Waratah Place, Dalkeith
We refer to your letter of 22 October 2024.
Garden Shed
The garden shed will be removed at the earliest opportunity. We will confirm the removal date shortly.
Swimming pool
We do not agree that the swimming pool is an extension of the existing structure. We maintain that the inclusion of the swimming pool on 165A (Lot 17) Waratah Place, Dalkeith was not done in breach of the covenant. Accordingly, our client does not propose to remove it.
Amended plans
The amended plans which were enclosed with our letter of 9 October 2024 depict a garage extension to the southern facade of the existing dwelling.
Please confirm the matters which are disputed by your client.
If you have any questions or wish to discuss the above, please let us know.
…
The garden shed (Garden Shed) the subject of this correspondence was subsequently removed.
On 29 October 2024, the Writ of Summons initiating the proceeding was filed.
I return in s 11.4 to the significance, if any, of the delay between when Mr Ninkov first found out that construction of the Works had commenced and when he first notified Mr McKail of his concerns.
At no time since Mr McKail purchased the Burdened Land did Mr Ninkov have a conversation with Mr McKail or Ms Gardener in which he stated to them that there may be an issue with works on that property because of the covenant that it was on.[64] Nor did he instruct his lawyers to do so prior to the letter in [58].[65]
[64] ts 27.5.25, pages 79 - 80.
[65] ts 27.5.25, page 98.
On 27 November 2024, Bennett sent McLeod an email in the following terms:[66]
Dear Ms Hamdorf,
Thank you for your time earlier today and providing your client's proposed minute.
We look forward discussing the minute tomorrow at 2pm and by now you would have received a Teams invite, if not please let me know.
You have noted that your client has stopped the works on the restrictive covenant to restrict his loss if an order is made to demolish the works. We recognise this fact and look forward to programming this matter to hearing as soon as possible.
Lastly, as discussed, I will be present at your client's property at 9am to meet our surveyor, building inspector and media person and will leave shortly thereafter allowing the inspection to proceed in my absence.
…
[66] Exhibit 32.
Since the commencement of the action Mr McKail has ceased all construction on the Burdened Land, and the construction remains unfinished pending the outcome of this action.[67] There have been no discussions between Mr Ninkov and Mr McKail, or anyone on their behalf.[68]
[67] ts 28.5.25, pages 181 - 182.
[68] ts 27.5.25, page 59.
Mr McKail sought some quotes on the cost to remove the Works. He obtained a written quotation to remove the Pool, Wall and Pool Steps which was $29,700 to $33,000 (inc GST). He estimated that the cost of removing the Pergola was $5,000.[69]
4.2 Mr Ninkov's evidence as to the April conversation(s)
[69] ts 28.5.25, pages 153 - 155; exhibit 17 (TB 289).
Mr Ninkov's evidence was that aside from the conversation at the clothesline ([39]) he only ever had one conversation with Ms Gardiner.
This conversation took place after the 9 April email was sent ([47]). Mr Ninkov gave evidence that this occurred on a Sunday in late April. His neighbours were making noise. He popped his head over the fence. He had a conversation with Ms Gardiner. There was a younger man there driving a 'mini-skip, like, bulldozer that, you know, moves dirt bobcat', whom Ms Gardiner introduced to him as her son. Mr McKail was there, but at a distance and did not participate in the conversation. In this conversation Mr Ninkov told them that as it was a Sunday the City of Nedlands noise regulations prevented building work from going on. He asked them to stop the work, which they did.[70]
[70] ts 27.5.25, pages 56 - 57.
As to the balance of the conversation, Mr Ninkov's evidence was:[71]
What was the conversation that occurred? - That was - the conversation was about noise, and then there was a few throwaway comments, and then there was I think a mention - a mention of the history of Dalkeith, and I spoke, I think, that my property had been part of a dairy farm, had a well on it, and that was about it. They mentioned that they may be doing some stuff, but that was never formalised what that exactly was going to be.
[71] ts 27.5.25, page 57.
In cross-examination, Mr Ninkov accepted that this conversation could have been on ANZAC day, a public holiday. He said that Mr McKail was present, but did not say anything. Mr Ninkov never said anything to Mr McKail. He never said anything about a limestone layer.[72] He did accept that there was something said by Mr McKail in this conversation about a pool:[73]
You say - you deny that there was ever any such conversation?---Well, let - there was a conversation, but that wasn't it. Yes. There was talk about a dairy well. What - first of all, there is no bore water in a dairy well. It lies below the limestone aquifer, so that, by definition, is incorrect, which I wouldn't say. He never - when you go over to your next-door neighbour and say, you know, 'Hey, can you stop making noise', you don't get an outline of his plans or what he intends to do in the backyard. It just never occurred. The only thing he may have mentioned was thinking about a swimming pool. Maybe. You know, who knows maybe, who knows (indistinct)
…
And you went on to say that you recall now Mr McKail saying something in that conversation?---I've always said that Mr McKail may have mentioned something about a swimming pool, but I had nothing to do with talking about a bore, or well, or anything ‑ - -
[72] ts 27.5.25, pages 68 - 70.
[73] ts 27.5.25, pages 76 - 77.
And:[74]
Your evidence is that Ms Gardiner, to your recollection, said something to you about installing a pool?---'We may do this. We may do that. We may do this'. We may.
Well, what's this and that? - A garden.
A pool?---Barbeque. I think that's ‑ - -
A pergola?---No. I never heard a pergola.
[74] ts 27.5.25, page 78.
Mr Ninkov said that this conversation went for up to 15 minutes:[75]
[75] ts 27.5.25, page 79.
But you accepted that this was a conversation that went for 15 minutes max?---Up to 15 minutes.
Up to 15 minutes?---Yes.
But you wouldn't dispute that it was 15 minutes?---Probably not. I - look, I don't know. It wasn't long. It wasn't comfortable.
It wasn't comfortable?--- No.
Well - well, you were uncomfortable?---Because I told them that - 'Please, you shouldn't be making noise on a Sunday'.
So - and was that the commencement - your recollection, the commencement of the conversation?---That was the reason for the conversation.
And then after that - and that, you would think, would take a minute or so to rise that issue?---'Why can't we do it?' 'Because it's the City of Nedlands's laws. You know, it's regulations on noise.' 'Have you launched a plan?' That sort of stuff.
Two minutes?---A few minutes. Yes. Sure.
And so you would accept that after that two-minute conversation - you wouldn't dispute that after that two minutes of conversation, there was, quite possibly, a further 13 minutes of conversation?---I don't know if it was 15, 10. I don't know. It's too long ago for me to remember the exact time.
4.3 Mr McKail's evidence as to the April conversations
Mr McKail's evidence is that he only ever had one conversation with Mr Ninkov.[76] This occurred two or three days after 3 April 2024 when he received the approval from the City of Nedlands for the Pergola and had started demolition. In addition to him and Mr Ninkov, Ms Gardiner and her son Ben were also present. There was no particular catalyst for the conversation. Rather:[77]
It was just purely a neighbourly, over-the-fence, 'Hi', you know, 'I'm Mladen'.
[76] ts 27.5.25, pages 127 - 131.
[77] ts 27.5.25, pages 130.
The conversation occurred over the fence at the rear of the Burdened Land, on the other side of which is a laneway which is part of the Benefitted Land.
During the conversation, Mr Ninkov told them that the houses were on the original dairy farm in the area, and that his house was the original homestead. Mr McKail found this interesting as he thought that his house was the original homestead. They also talked about the work that Mr Ninkov was doing in China:[78]
You told your solicitors about that? - Yes. I did, yes, because it was relevant, you know, because I found it very interesting that he was - does China and I go to China quite a lot, so that's why we had the conversation about.
[78] ts 28.5.25, page 175.
There was also talk about the renovation work that was being done. In Mr McKail's words:[79]
Then, basically we spoke, we were pulling down the pergola and cleaning it all up, and we are going to put in an above-ground pool - because the reason for doing that is because we have only got 1.2 metres, we didn't want a pool fence, and we just need one gate, which is the latest thing everyone does - and that going to replace the pergola because we didn't want all the rubbish and everything around. Then, in coming back at that, he was - said about that there was a well or bore which was the original one to the dairy. And he said you would have had a problem getting a below ground pool there because it has got a limestone plateau underneath.
[79] ts 27.5.25, page 129.
Mr McKail added that when he had dug down for the Pool he found the limestone layer that Mr Ninkov was talking about.
The conversation moved on to Mr Ninkov's work, the problems he had when constructing his underground garage, his children, 'pretty much a general chit-chat'.[80]
[80] ts 27.5.25, page 130.
The conversation lasted for about 15 minutes.
During this conversation, Mr Ninkov did not raise any issue concerning the Restrictive Covenant.
Mr McKail also gave evidence that on ANZAC day he, Ben and Ms Gardiner were using an excavator in the backyard to remove some limestone blocks. At one point when Mr McKail was around the front, Ben came to tell him that Mr Ninkov had told him and Ms Gardiner that they had to stop work, because they could not use machinery on a public holiday. So they stopped work.[81]
[81] ts 27.5.25, pages 131 - 132.
Mr McKail's evidence was challenged in cross-examination. One theme was that the conversation in which Mr Ninkov raised a noise complaint could have occurred on Sunday 7 April 2024, Sunday also being a day on which machinery could not be used pursuant to the building permit.[82]
[82] ts 28.5.25, page 174.
Another theme was that Mr McKail gave evidence in court about matters which went beyond what he had told his lawyers and what had been disclosed in his outline of evidence which had been filed.[83]
[83] ts 28.5.25, page 175.
When, Mr Ninkov's recollection was put to him, Mr McKail was adamant that he could not be mistaken, commenting that he found the conversation interesting:[84]
All right?---Why would I - why would I not remember that? And I found the conversation with Mladen of - very interesting, you know? About the history of - of the dairy, about the well, about the limestone underneath. So, it was just a general chit-chatty, neighbourly conversation. And I can't see why he can't remember that.
[84] ts 28.5.25, pages 175 - 176.
Mr McKail was also challenged to the effect that he had lodged a development application for the House with the City of Nedlands which he knew contravened the Restrictive Covenant (see [56] to [59]). Mr McKail said this was a mistake, which he corrected as soon as it was pointed out.[85]
[85] ts 28.5.25, pages 178 - 179.
The evidence relating to the Garden Shed (see [61] to [63]) was also put to Mr McKail. He accepted that he had mistakenly formed the view that the Garden Shed was not in breach of the Restrictive Covenant, removed it and apologised.[86]
[86] ts 28.5.25, page 180.
Mr McKail was also cross-examined to the effect that he and Ms Gardiner had colluded in relation to their evidence about the conversations with Mr Ninkov.[87]
[87] ts 28.5.25, pages 186 - 187.
Otherwise, in response to his evidence being tested by counsel for Mr Ninkov, he remained firm in his recollection.
4.4 Ms Gardiner's evidence as to the April conversations
Ms Gardiner recalls two conversations with Mr Ninkov. The first was in early April. As to what was said:[88]
And how did that come up? If you could just tell his Honour in your own words?---Yes.
- what you recollect, how that conversation started, and your best recollection of anything that you recall about that conversation?---So it was just a casual conversation. Mladen put his head over the fence and said hello. Obviously, I had already met him. Alan introduced himself, and Ben introduced himself. I think - I think it was Ben. He was on the mini excavator because at this stage, they were already knocking bits down in the backyard. And - - -
So just pause there if I might?---Yes.
So the demolition - we could call them the demolition works - - -? -Demolition.
‑ - - they were well on their way?---They were well on their way. Yes. And so it was just a very casual conversation. Something came up about China because Mladen has something business in China, and Alan imports from China. There was kind of a conversation a bit about London because Mladen said that he also lived in London, and we have a daughter in London. So there was chit-chat about family. And then, there was chit-chat about the renovations. And Alan spoke about that he was replacing the pergola, and we were putting in a swimming pool. And this is when Mladen, he started to tell us that the land that we were all on was part of the Dalkeith - a Dalkeith Dairy, and that his house was the original homestead or original house and that he had put the - he had put the extension onto the top of the house. And it was when we were kind of talking that we were going to put in a pool, and we were putting an above-ground pool in because we didn't want to put a pool fence around the pool. And that is when he started then saying that he had a well that went underneath the limestone layer and that the water quality was great from underneath that limestone and that we probably wouldn't have got a below-ground swimming pool in even if we wanted to because of this limestone layer. And it was just general - general chit-chat. And then, yes.
Do you have a recollection of how long that conversation took? When I say that conversation- - - ?---Yes.
- - - the three of you?--- It was probably about 15 minutes or so, I would guess. Yes.
[88] ts 28.5.25, pages 191 - 192.
As to the second conversation:[89]
… And do you have any other conversation with Mr Ninkov after this conversation?---Yes. We did. It was on Anzac Day. And my son was out there, continuing this demolition. And I was out the back as well. Alan wasn't there. He was out the front of the property. And Mladen poked his head over the fence and said to us, did you realise that we weren't allowed to make noise on a public holiday? Ben turned - when he poked his head over, Ben turned the engine off. And we said no, that we weren't aware. And he said, have any of the other neighbours complained? And we said, no. He asked us how much more we had to do, and Ben said, 'No. We were planning to work all day. So with that, we just stopped work for the day, and that was it. We went and said to Alan, 'Well, we can't do any more because we can't make noise.'
And while you were there, did Mr McKail speak to Mr Ninkov on that day? - No. Not that day. No.
[89] ts 28.5.25, page 192.
Ms Gardiner gave evidence that she found the conversation interesting:[90]
And did you sit down with Mr McKail and have a discussion about what you recollected was spoken of in the conversation and what he recollected?---No. All we spoke about, that conversation amongst our family after that - after that conversation, we were going - you know, like, we all had a conversation directly after that, because we said, 'That's amazing. Can you believe this was actually the Dalkeith Dairy?' Like, we were quite interested in that conversation. In fact, I recounted that story to some of my friends because I found it really interesting - really interesting news, and that there was a well there. So yes. It was a part of the conversation that I just - I remember because it was an interesting conversation for me.
[90] ts 28.5.25, page 193.
Ms Gardiner was cross-examined on the theme that she had added details into her evidence concerning China and London which were not in the statement which her lawyers had prepared, and she had signed. She said that she had told them, and that she did not think that she had to put in her statement every little detail as to what was said.[91]
[91] ts 28.5.25, pages 192 - 198.
Otherwise, in response to her evidence being tested by counsel for Mr Ninkov, she remained firm in her recollection.
4.5 Findings as to the April conversations
Each witness was doing their best to recall what was said in conversations that they had no particular reason to take much notice of at the time. There is a measure of consensus in their recollections as to what was said, the disputed facts being when and to whom it was said.
To the extent that there is a dispute, I prefer the recollections of Mr McKail and Ms Gardiner. The fact that they both have similar recollections is a sufficient basis for doing so. Further, there were aspects of the conversation which piqued the interest of each of them ([78], [87], [94]), giving each a reason to have a particular recollection of the conversation. This also explains (as Ms Gardner says) why they were subsequently talking together about the conversation. Neither of their evidence was undermined in cross-examination. The reason for each of them not going into detail in their statements as to peripheral matters in the conversation with Mr Ninkov (London, China etc), is that these matters were self-evidently peripheral to the issues in dispute.
I am not saying that Mr Ninkov was lying, merely that the recollection of the other witnesses is more accurate and is to be preferred. Mr Ninkov appears to have conflated the two conversations.
This conclusion is supported by the fact that it is more plausible that the longer conversation, which included the history of the Benefitted Land, took place in a more amicable setting than that of the noise complaint. Indeed, Mr Ninkov said that the conversation in which he made the noise complaint 'wasn't comfortable' ([75]). I also add that Mr Ninkov being informed that Mr McKail was planning some work at the rear of the House would provide a logical reason for Mr Ninkov to reach out to his lawyer on 9 April 2024 ([47]).
Accordingly, I find that the following facts occurred:
(a)there were two conversations in April 2024;
(b)the first was early in April, just after Mr McKail had started demolition work;
(c)this conversation was between Mr Ninkov, Mr McKail, Ms Gardiner and Ben;
(d)it was a casual conversation, the catalyst for which was Mr Ninkov putting his head over the fence;
(e)Mr McKail was on the mini-excavator, but stopped to have the conversation;
(f)after introductions, the conversation mostly involved what Ms Gardiner described as general chit-chat, and as to which I accept her evidence at [92] which is consistent with Mr McKail's evidence and, in substance (but not timing) largely with Mr Ninkov's;
(g)relevantly for present purposes, Mr McKail said that he was going to replace the Old Pergola and put in an above ground swimming pool;
(h)the second conversation occurred on ANZAC Day (25 April 2024);
(i)the catalyst for this conversation was the use of machinery by Mr McKail and/ or Ben in their backyard;
(j)the second conversation was between Mr Ninkov, Ms Gardiner and Ben;
(k)Mr Ninkov put his head over the fence and asked Ms Gardiner and Ben whether they realised that they were not allowed to make any noise on a public holiday;
(l)one or other of Ms Gardiner or Ben responded that they were not aware;
(m)Ben turned off the engine of the machine he was using;
(n)the conversation was short and uncomfortable;
(o)Ben then told Mr McKail (who was not present when the second conversation occurred) about the conversation; and
(p)Mr McKail, Ms Gardiner and Ben then stopped work for the day.
4.6 What was Mr McKail's knowledge and intentions?
I make four findings about Mr McKail's knowledge of the Restrictive Covenant.
The first is that Mr McKail in fact knew that there was a restrictive covenant over the land he was about to purchase.[92]
[92] ts 27.5.25, page 131.
The second is that Mr McKail believed that the Restrictive Covenant was limited to the 13.87 m height restriction over the Restricted Area. When Mr McKail viewed the House prior to purchasing it, the real estate agent had signage up on the front door to the effect that there was a covenant on the property which meant that you could not build over '13.47… above sea level'.[93] And:[94]
All right. And I think you gave some evidence yesterday, but it was brief, and if I could ask perhaps for clarification of it. Did you ever have an understanding of what the restrictions were on you under the restrictive covenant? That you weren't allowed to go over the 13.47 or 13.87 above sea level, and then you can't - I wasn't sure about the - you know, about the height. That's my - that was what my whole understanding of the covenant was.
Ms Gardiner's evidence was to the same effect.[95]
[93] ts 27.5.24, page 119; ts 28.5.25, pages 156, 161.
[94] ts 28.5.25, page 155.
[95] ts 28.5.25, page 193.
The third is that Mr McKail did not in fact believe that the Pool (including the Wall and the Steps) and the Pergola were being constructed in breach of the Restrictive Covenant.
The fourth is that Mr McKail did not obtain any advice to the effect that the Pool and the Pergola were being constructed in compliance with the Restrictive Covenant.
Mr McKail gave evidence that had he been told by Mr Ninkov that the Works he was proposing breached the Restrictive Covenant, he would have stopped work.[96] This evidence is consistent with what he in fact did when advised that the House development was in breach of the Restrictive Covenant (amended it), that the Garden Shed was in breach (removed it), and that the other Works were in breach (ceased work) (see [59] to [68]). Although retrospective, I accept Mr McKail's evidence.
4.7 Mr Ninkov's knowledge and intentions
[96] ts 28.5.25, page 155.
In terms of Mr Ninkov's actions, it is instructive to summarise in one place the findings that I have made so far:
(a)in early April 2024, Mr Ninkov became aware that some demolition was taking place in the backyard of the Burdened Land (and he was certainly aware of this by 9 April 2024 when he sent the email of this date to Bennett);
(b)around 7 April 2024, he was informed by Mr McKail that the plans for the backyard included replacing the Old Pergola and putting in a pool;
(c)in the 9 April 2024 email, Mr Ninkov's concern was that Mr McKail may be thinking of extending the House, and may be unaware of the Restrictive Covenant;
(d)on 10 May 2024, he became aware that the cement had been poured into what looked like a pool;
(e)on 21 May 2024, he became aware that a pergola appeared to be being constructed;
(f)between 9 April 2024 and 23 May 2024, Mr Ninkov was receiving both legal advice and surveyors reports in relation to his concerns about a breach of the Restrictive Covenant;
(g)the advice in (f) was such as to cause Mr Ninkov as at 23 May 2024 to form the view that no action was required by him in relation to his concerns about a potential breach of the Restrictive Covenant (a conclusion evident in his email to Bennett of that date ([53])).
Mr Ninkov was cross-examined at length along a theme that he knew that demolition had occurred, he knew that construction of the Pool and Pergola had commenced, he was getting legal advice along the way, yet did not inform Mr McKail of his concerns until the letter of 17 September 2024.
Mr Ninkov's response was to the effect that:
(a)he assumed that his new neighbours would be aware of the terms of the Restrictive Covenant, but did not know that;[97]
(b)he was waiting to see what would be constructed, what his neighbours were going to do with the property;[98]
(c)he wanted to know what the Restrictive Covenant meant and what it covered, and whether the work being done was within it;[99]
(d)he wanted to have his lawyer have a look at the Restrictive Covenant 'just be ready in case something goes wrong';[100]
(e)he did not want to speak to Mr McKail until he had received legal advice;[101] and
(f)he was waiting for legal advice before going forward.[102]
[97] ts 27.5.24, pages 82 - 83.
[98] ts 27.5.24, pages 72 - 73.
[99] ts 27.5.24, pages 72, 101.
[100] ts 27.5.24, page 73.
[101] ts 27.5.24, pages 82 - 83.
[102] ts 27.5.24, pages 98 - 99, 109.
In summary:[103]
I wasn't going to move without my lawyers saying that I had a case. It's as simple as that.
I find this to be a reasonable explanation.
[103] ts 27.5.25, page 101.
As to what Mr Ninkov's concerns were, in cross‑examination, Mr Ninkov said that what prompted him to initially contact Bennett was the demolition, as he was worried about what they were going to do with the area.[104] There is nothing in the evidence, including the disclosed email communications, to the effect that as at 23 May 2024 Mr Ninkov had any concern that the Pool and Pergola were being constructed in breach of the Restrictive Covenant. If he did have such a concern, it is inherently improbable that it would not have appeared in the email communication. Is it more likely than not that as at 23 May 2024, Mr Ninkov did not have a concern that the Pool and Pergola (which he was aware were being constructed), were being constructed in breach of the Restrictive Covenant, and I so find.
[104] ts 27.5.24, page 80.
The concern that the Pool and Pergola were being constructed in breach of the Restrictive Covenant did not appear in the 17 September 2024 letter ([58]). The reference is to the 'proposed development' notification of which had been received by Mr Ninkov from the City of Nedlands. Again, it is inherently improbable that if Mr Ninkov, or his lawyers, had any concern that the Pool and Pergola were being constructed in breach of the Restrictive Covenant, that this concern would not have appeared in the letter. Is it more likely than not that as at 17 September 2024, neither Mr Ninkov, nor his lawyers, had a concern that the Pool and Pergola were being constructed in breach of the Restrictive Covenant, and I so find.
The first time the Pool and the Pergola appear in the correspondence is the 9 October 2024 letter from McLeod ([59]). The documents accompanying that letter included the building permit for what has become the Pool, the Wall and the Pool Steps[105] and the building permit for what has become the Pergola.[106] On the evidence before me, this was the first time that Mr Ninkov had knowledge of the detail of the Pool, the Wall, the Pool Steps and the Pergola.
[105] Exhibit 3 (TB 12 - 27).
[106] Exhibit 3 (TB 28 - 40).
The first complaint about the Pool appears in the 10 October 2024 letter ([60]). Even then there was no complaint about the Pergola. I infer that nor was there a complaint about the Pergola in the 22 October 2024 letter from Bennett referred to in the 29 October 2024 letter from McLeod to Bennett ([62]). Consistent with what I have set out at [114], I also infer that Mr Ninkov was not advised, and did not form the view, that the Pool may have been in breach of the Restrictive Covenant until shortly before the 10 October 2024 letter was sent. This conclusion makes sense given the finding at [114]. There is no evidence to the contrary.
In the writ which was filed on 29 October 2024 the Works said to be in breach of the Restrictive Covenant are not identified.
Indeed, as far as I can tell from the evidence before the court, the first time the complaint that the Pergola was in breach of the Restrictive Covenant was made, was in the statement of claim that was filed on 8 November 2024.
Based on these findings, I infer and find that Mr Ninkov was not advised, and did not form the view, that the Pergola may have been in breach of the Restrictive Covenant before litigation was commenced. There is no evidence to the contrary.
I return to the significance of Mr Ninkov's actions and understanding in s 11.4.
Issues arising for determination
Based on the statement of agreed facts, the statement of agreed issues, pleadings, the written and oral opening submissions and the manner in which the trial was conducted, the following matters are not in dispute:
(a)the formal validity of the Restrictive Covenant;[107]
(b)the Defendant's Land is burdened by the Restrictive Covenant;
(c)the Plaintiff's Land has the benefit of the Restrictive Covenant; and
(d)each of the Works were 'constructed' or 'erected' in the Restricted Area on the Burdened Land.[108]
[107] Defendant's Submissions, par 3.
[108] Defendant's Submissions, par 36.
That leaves seven issues in dispute:
(a)What is the proper construction of cl 1(c) of the Restrictive Covenant?
(b)Did Mr McKail breach cl 1(c) of the Restrictive Covenant by commencing construction or erection of the Pergola?
(c)Did Mr McKail breach cl 1(c) of the Restrictive Covenant by commencing construction or erection of the Pool?
(d)Did Mr McKail breach cl 1(c) of the Restrictive Covenant by commencing construction or erection of the Wall?
(e)Did Mr McKail breach cl 1(c) of the Restrictive Covenant by commencing construction or erection of the Pool Steps?
(f)If there is a breach of the Restrictive Covenant, is Mr Ninkov entitled to a mandatory injunction?
(g)What final orders are appropriate?
What is the proper construction of cl 1(c) of the Restrictive Covenant?
6.1 Relevant principles
In determining the principles which apply to the construction of a restrictive covenant, it is instructive to begin with two decisions of this court in which similar issues were considered.
The first is the decision of Justice Hall in Miller v Evans.[109] In that case, the plaintiff and defendants (husband and wife) were neighbours in suburban Perth. Their respective properties were burdened by a restrictive covenant. The restrictive covenant limited what could be built near the rear boundaries of the properties, the rear boundaries having river views. The restrictive covenant relevantly provided as follows:[110]
The proprietors of each of the Lots will not:
…
(e)construct or cause to be constructed any building appurtenant to dwellings on the Lots including garages and car ports, swimming pools and swimming pool fences which exceed 1 metre in height measured from the Australian Height Datum for that Lot for a distance of 7 metres from the southern boundary of Lots 54 to 61 (inclusive) and 66 to 70 (inclusive) and 3 metres from the southern boundary of Lots 62 to 65 (inclusive), 90 to 93 (inclusive), 107 to 110 (inclusive), 180 to 190 (inclusive) and 301 and 302; and
(f)grow any tree or vegetation or cause any tree or vegetation to be grown which exceeds 1 metre in height from the Australian Height Datum for that Lot for a distance of 7 metres form the southern boundary of Lots 54 to 61 (inclusive), 66 to 70 (inclusive) and 3 metres from the southern boundary of Lots 62 to 65 (inclusive), 90 to 93 (inclusive) 107 to 110 (inclusive) 180 to 190 (inclusive) and 301 and 302.
[109] Miller v Evans [2010] WASC 127 (Hall J) (Miller).
[110] Miller [9].
At first instance, Hall J found that the defendants had built structures on their land in breach of the restrictive covenant. His Honour then held that the plaintiff was entitled to a mandatory injunction requiring the defendants to remove the offending structures or, alternatively, was entitled to damages. I will return to his Honour's consideration of the issues relating to relief in Part 11 of these reasons. The decision of Hall J was the subject of an unsuccessful appeal.[111]
[111] Evans v Miller [2011] WASCA 89 (Miller CA).
In relation to the construction or interpretation of the Restrictive Covenant, Hall J was of the view that the ordinary principles of construction of contracts should be applied to the terms of the restrictive covenant.[112] Those principles were stated by the High Court in Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd in the following terms:[113]
It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.
[112] Miller [14].
[113] Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 [40] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) (references omitted); Scott Fury trading as Fury Custom Boats v Nasso [2021] WASCA 171 [64] (Morrison AJA, with whom Buss P and Vaughan JA agreed).
After referring to the principles in Toll, Hall J added:[114]
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 [the developer] 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.
[114] Miller [15] - [16].
I respectfully agree with and adopt the approach of Hall J. Neither counsel invited the court to take a different approach.
The second decision is the decision of Pritchard J in Panton v The Owners of Survey Strata Plan 46838.[115] In that case, owners of the burdened land sought an order pursuant to TLA s 129C(1) modifying the restrictive covenant over the land. The order was opposed by the owners of the Benefitted land. As a first issue, her Honour was required to construe the text of the restrictive covenant to determine whether the improvements which the owners of the burdened land wished to make were in breach. The text of the restrictive covenant was:[116]
… William Maurice Barry and Olive Gertrude Barry and their successors in title will not erect any structure save a two metre high fence or grow trees or vegetation upon the said portion of Lot 236 as is hachured blue on the said plan annexed hereto of a height in excess of 27.18 metres above Australian Height Datum …
[115] Panton v The Owners of Survey Strata Plan 46838 [2013] WASC 35 (Panton).
[116] Panton [22].
Her Honour adopted the same approach as Hall J in Miller set out in the last paragraph quoted at [126],[117] then added:[118]
In determining the meaning of the Restrictive Covenant, the starting point is to consider the meaning of the words used in the Restrictive Covenant. The words used should be given their ordinary or colloquial meaning, and should not be construed in any technical or legal sense. They should also be construed in their context and upon a reading of the whole instrument…
[117] Panton [34].
[118] Panton [36] (references omitted).
In interpreting the terms of the restrictive covenant, her Honour considered the dictionary meanings of the relevant words by reference to the Macquarie Dictionary. Relevantly for present purposes, Pritchard J considered the ordinary meaning of the word 'erect' in the context of the restrictive covenant at issue in that case:[119]
The relevant dictionary meaning of the word 'erect' is to build, construct or raise… The word is broad enough to encompass both things which come into existence as a result of the combination of other things - so as to make (or build or construct) something new - and things which may be created or pre‑fabricated elsewhere and installed (or raised) in a particular location.
The words 'upon' and 'on' cannot be construed, in my view, to encompass things which are wholly located under the restricted land. However, it is clearly possible for something to be erected 'upon' or 'on' the restricted land, although part (and perhaps even a substantial part) of that structure is located below the surface of the restricted land... It could hardly be disputed, for example, that a house would be erected upon or on land, notwithstanding that part of that house (such as its foundations, or a garage or cellar) may be constructed below ground level.
[119] Panton [40] - [41] (Pritchard J), citing Macquarie Dictionary (Revised Third Edition, 2001).
In relation to the first sentence of the second paragraph just quoted, her Honour referred to the decision of Dwyer J in Subiaco Municipal Council v Walmsley,[120] commenting that his Honour reached a similar conclusion in relation to the meaning of 'erect' albeit in a somewhat different context. It is instructive to quote the relevant passage:[121]
The word 'erect' would seem to cover an act of setting up above the surface of the ground in a permanent or quasi-permanent position, and, therefore, to denote something which is not necessarily built on a foundation let into the ground, and which also may differ from placing in a temporary position for a passing purpose.
[120] Subiaco Municipal Council v Walmsley (1930) 32 WALR 49, (56 - 57) (Dwyer J).
[121] Walmsley (56 - 57).
In relation to the word 'structure' her Honour concluded:[122]
The relevant dictionary meaning of the word 'structure' is 'something built or constructed'; anything composed of parts arranged together in some way'. The immediate context within which the word 'structure' is used suggests that a broad meaning of 'structure' was intended. The erection of 'any' structure is prohibited. Further, the erection of a fence is expressly excepted when it would otherwise apparently have been within the prohibition, which suggests that it was not intended only that the erection of particular kinds of structures (such as a house or shed or other building) was prohibited.
Having regard to the broader context - namely that the words appear within an instrument containing a prohibition, breach of which can have serious consequences - the use of the words 'erect' and 'structure' should be understood as importing a requirement for some element of permanence, so that structures with a merely temporary or transient existence on the restricted land would not offend the Restrictive Covenant …
[122] Panton [43] - [44] (references omitted).
Pritchard J also considered the object of the restrictive covenant.[123] In that regard, the issues in Panton were similar to that in the present case:[124]
There was no dispute between the parties that an object of the Restrictive Covenant is to preserve the views from the Marchese land in the direction of the Swan River and the Perth City skyline. The issue in dispute was whether the Restrictive Covenant has an additional object, namely to preserve an amenity of open space and the absence of built form on the restricted land. As a starting proposition, there is no doubt that land may be affected or Benefitted by a restrictive covenant in intangible ways, such as the preservation of view, or the preservation of amenity or environment …
Her Honour determined that the object of the restrictive covenant was solely to preserve the views from the Benefitted land towards the Swan River and the Perth City skyline, and not to preserve an additional amenity of open space and an absence of built form on the restricted land.[125]
[123] Panton [55] - [64].
[124] Panton [55], citing Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1996) 141 ALR 687, 699 (French J, with whom Einfeld J agreed).
[125] Panton [58].
Her Honour ultimately held that each of the works being proposed to be built above ground by the covenanter, including fences, gates, stairs, and a bin enclosure, were 'structures'.[126] Further, a pool proposed to be built into the ground was a 'structure' as part of pool would be erected upon the land.[127] Her Honour determined that some of the proposed improvements (gates and fences) did not contravene the terms of the restrictive covenant, and that the restrictive covenant should be modified to permit some, but not all, of the proposed improvements.
[126] Panton [26], [70] - [78].
[127] Panton [76].
To the relevant principles in these decisions, three other principles may be added.
The first that in construing a contract, and thus a restrictive covenant, the court will prefer a construction which gives each clause an operative effect.[128] In other words, a reasonable person would not construe a contract such that a particular clause is rendered nugatory or ineffective.
[128] Chevron (TAPL) Pty Ltd v Pilbara Iron Company (Services) Pty Ltd [2021] WASCA 193 [157] (Judgment of the court); Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson t/as Holgerssons Complete Home Service [2019] WASCA 114 [53] ‑ [58] (Judgment of the court).George 218 Pty Ltd v Bank of Queensland Ltd (No 2) [2016] WASCA 182; (2016) 313 FLR 287 [88] (Reasons of the court).
The second is where it is necessary to resort to a dictionary to determine the ordinary meaning of a word, the contemporary practice of Australian courts, as evidenced by the approach of Pritchard J in Panton, is to prefer the Macquarie Dictionary given its Australian focus.[129] Where I refer to the Macquarie Dictionary, I am using the online version, which I regard as being the most up to date.[130]
[129] See for example: Minister for Immigration and Multicultural Affairs v MZAPC (2025) 99 ALJR 486; [2025] HCA 5 [66]; (Edelman J); Disorganized Developments Pty Ltd v South Australia (2023) 410 ALR 508; (2023) 97 ALJR 575; [2023] HCA 22 [23] (Keifel CJ, Gageler, Gleeson, Jagot JJ); Kelly v Western Australia [2024] WASCA 116 [354] (Mazza & Hall JA); Bombardier Inc & Avwest Aircraft Pty Ltd [2020] WASCA 2 [100] - [102] (Judgment of the court) (Bombardier).
[130] Following the approach of the Court of Appeal in Bombardier [100] - [102].
Finally, where the meaning of words in a restrictive covenant remains in doubt or ambiguous after other rules of interpretation have been resorted to, the covenant should be construed against the covenantor or grantor.[131]
6.2 Plaintiff's position
[131] Ferella and Another v Otvosiand and Another (2005) 64 NSWLR 101 [21] - [23] (Hamilton J).
The plaintiff's position is that the object of cl 1(c) of the Restrictive Covenant is to:
(a)protect the covenantee's (plaintiff's) views, particularly of the Swan River;
(b)protect the covenantee's aural amenity by restricting excessive noise being generated in the Restricted Area;
(c)impose an obligation on the covenantor (defendant) of maintaining the Restricted Area as open space; and
(d)restrict the construction of any buildings or structures which may impede on the privacy of the covenantee.
The plaintiff says that the object set out in [139] can be drawn from:
(a)the ordinary impression given by the words of cl 1(c);
(b)the nature of this Restrictive Covenant, as well as restrictive covenants generally, that restrict the covenantor's use of the land for the benefit of the covenantee;
(c)the fact that cl 1(c) does not restrict the growing of trees or vegetation in the Restricted Area and that the Restrictive Covenant and does not place any such restriction save for the height requirement imposed by cl 1(d);
(d)the proximity of the Benefitted Land and the Burdened Land;
(e)the view from the Benefitted Land towards the Swan River, and the fact that the Burdened Land is between the Benefitted Land and the Swan River; and
(f)there being no other readily apparent purpose or purposes of cl 1(c).
The plaintiff then submits that, linguistically, cl 1(c) of the Restrictive Covenant restricts the covenantor from constructing or erecting any of the following three categories on the Restricted Area:[132]
(a)'future building';
(b)'extension of any part of any existing building'; or
(c)'structure'.
Each of these are qualified by 'any', which appears before the words 'future building', indicating that a broad meaning ought to apply to each of the three categories.[133]
[132] Plaintiff's Submissions, par 24.
[133] Plaintiff's Submissions, par 25.
An alternative construction where there are only two categories restricted by cl 1(c), being a 'future building' or 'extension of any part of any existing building or structure', cannot arise in circumstances where the same words 'future building or extension of any part of any existing building or structure' are used in cl 1(b). To construe the meaning of these same words in cl 1(b) would permit the covenantor to erect new 'structures' 13.87 m above sea level, which is plainly contrary to the intent of cl 1(b). If a broader construction applies to the meaning of 'structure' to include things not captured under the term 'building', such as works not of a permanent nature or non-habitable works including pools, pergolas, or fences, 'extensions' are not typically applied to these types of 'structures'.[134]
[134] Plaintiff's Submissions, par 26.
The plaintiff invites the court to define the words 'construct' and 'erect' in accordance with the Shorter Oxford English Dictionary (4th ed 1993). 'Construct' means to 'make by fitting parts together; build, erect'. 'Erect' is similarly defined as to 'build; construct'; set up'. Counsel also invited the court to construe the word 'erect' in the same manner as Pritchard J in Panton[135] and Dwyer J in Walmsley.[136]
[135] Panton [40].
[136] Walmsley (56 - 57).
The use of 'construct or erect' indicates that there may be some difference between 'construct' or 'erect' as it would be a surplusage to use different terms if they both had the same meaning, though noting that the presumption against surplusages may be somewhat weak.[137] To the extent there is any difference between 'construct' or 'erect', as informed by the ordinary usage of the words and the authorities referred to, to 'erect' rather than 'construct' something involves:
(a)things that are created or pre-fabricated elsewhere before being installed or raised in the Restricted Area;
(b)things being set up in the Restricted Area without necessarily being built into the foundation of the ground; and
(c)things being set up in the Restricted Area of a quasi-permanent nature.
The broad meaning of 'erect', in turn, informs the meaning of 'future building or extension of any part of any existing building or structure'.
[137] Dovuro Pty Ltd v Wilkins [2000] FCA 1902 [152] (Finkelstein J); In re Strand Music Hall Co Ltd (1865) 55 ER 853, 856 (Sir John Romilly MR); Tea Trade Properties Ltd v CIN Properties Ltd [1990] 1 EGLR 155, 158 (Hoffmann J); AFC Holdings Pty Ltd v Shiprock Holdings Pty Ltd (2010) 15 BPR 28,199 [13] (Ball J).
In relation to the word 'building', the plaintiff invited the court to adopt a similar approach to that adopted by Hall J in Miller. In that case, the definition of 'building' in a restrictive covenant was not confined to houses or walled or roofed works. Referring to the Shorter Oxford English Dictionary¸ Hall J held that the word 'building' was used in 'its wider sense as being a thing which is built; a structure or edifice'.[138] Consequently, his Honour held that a spa, metal roof covering the spa and various walls were 'buildings' and that the applicable restrictive covenant had been breached. Counsel accepted that the surrounding words of the Restrictive Covenant in the current case differs to that in question in Miller, but submitted that the wider definition of the word 'building' ought to apply in the present case. The only significant distinction between the relevant clause in Miller and cl 1(c) is the use of the specific examples of 'garages and car ports, swimming pools and swimming pool fences' following the term 'building'.[139] This distinction should not limit the applicability of Miller in the present case because there are no examples listed in cl 1(c) to either broaden or narrow the definition of 'building'. Further, this is consistent with the use of 'construct or erect' in cl 1(c) and the broader meaning of the term 'erect' specifically contended for in [143] to [143]. Accordingly, the plaintiff submits that the Pergola, Pool, Wall and Pool Steps are each a 'building' and thereby restricted by cl 1(c).
[138] Miller [17] - [18].
[139] Miller [9].
As to the phrase 'extension of any part of any existing building' the word 'extension' is defined in the Shorter Oxford English Dictionary as 'a part of something that extends or enlarges it; esp. one added for this purpose'.
As to the word 'structure', the plaintiff invited the court to construe this word in the same way as Pritchard J did in Panton, which I set out at [132]. The plaintiff submits that the definition adopted by Pritchard J should be applied in the present case as:
(a)the word 'structure' is qualified in both the deed in Panton and in cl 1(c) by the use of the word 'any';
(b)both the deed in Panton and cl 1(c) use the term 'erect';
(c)even though the object of the restrictive covenant was only to preserve the views of the Swan River and Perth City skyline[140] (thus narrower than that contended for the by the plaintiff in this case), Pritchard J still applied a broad definition to the term 'structure';
(d)the only significant distinction between the relevant clause in Panton and cl 1(c) is the specific exclusion of a 2m fence in Panton, whereas cl 1(c) does not list any specific exclusions which either assist in broadening or narrowing the definition of 'structure'; and
(e)there is nothing in the deed to suggest this definition ought not apply.
[140] Panton [55] - [64].
In summary, the plaintiff submits that each item of the Works isa building, an extension and a structure within cl 1(c) (an issue which I will return to when I consider each item of the Works in parts 7 - 10 below). The Pool Steps, Wall and Pool are all permanent, whilst the Pergola may be better categorised as quasi-permanent rather than permanent, depending on the means of its erection. Additionally, each of the Works are all constructed or erected upon the Burdened Land. This would be the case even if the object of the Restrictive Covenant was only to protect the views from the Benefitted Land.
The second broad area of defence was laches. Hall J explained the principle as follows:[201]
The equitable defence of laches arises if two conditions are satisfied. Firstly, that there be unreasonable delay on the part of the plaintiff in commencing or prosecuting proceedings. Secondly, that in view of the nature and consequences of that delay it must be unjust in all the circumstances to grant the specific relief in question…The questions to be answered are whether the plaintiff by delaying the institution or prosecution of her case has either acquiesced in the defendants' conduct or caused the defendants to alter their position in reasonable reliance on the plaintiff's acceptance of the status quo or otherwise permitted a situation to arise which it would be unjust to disturb. Accordingly, it is necessary to consider the length of the delay and the nature of any acts done during the interval. Mere delay on its own is insufficient to invoke the defences of laches or acquiescence.
[201] Miller [66] (references omitted).
The evidence was that the plaintiffs were aware of the restrictive covenant from the time they purchased their property in December 2003 but said that they did not appreciate that the structures might be in breach of the covenant until about April 2006, having completed construction of their house in 2005. It then took a further 12 or so months for the plaintiff to become sure that the defendants' structures were in breach, then raise it with the defendants. Hall J found that neither the plaintiff nor her husband at any time acquiesced in the defendants' conduct in constructing the structures in breach of the covenant. The issue of delay or acquiescence can only be measured from the time the plaintiff became aware of the breach. The relevant delay was neither lengthy nor was it unreasonable.[202] Further:[203]
There was no evidence to suggest the defendants had in any way been prejudiced by the fact that complaint was not made until March of 2007. The plaintiff did not by word, action or inaction induce the defendants to believe that the breach of the covenant was known by the plaintiff and accepted by her. There is nothing to suggest that any prejudice has occurred to the defendants by the lapse of time. Prejudice may occur where there is a loss of evidence, the impossibility of granting equitable relief because a property has passed through various hands and successive owners have spent money on it, or where the defendants have reasonably acted to their detriment in reliance on the plaintiff's delay. Whilst they are merely examples, none of those issues arise in this case. Accordingly, in my view, there is no basis for denying the plaintiff a mandatory injunction on the grounds of delay, acquiescence or laches.
[202] Miller [69] - [73].
[203] Miller [74].
Hall J did not accept the defendants' argument to the effect that the plaintiff was motivated by malice and that she was trying to obtain a benefit over and above that to which she is properly entitled.[204] His Honour also rejected an argument that the plaintiff did not come to equity with 'clean hands' because she also had breached the restrictive covenant.[205] In conclusion:[206]
There has been a breach of the restrictive covenant by the defendants. The breach is not trivial nor is the detriment suffered by the plaintiff. The conduct of the defendants does not mitigate the breach or make equitable relief inappropriate. Whilst the defendants would suffer a detriment from the granting of a mandatory injunction such detriment is not so disproportionate as to make an injunction inappropriate. Damages are not a suitable alternative in the circumstances of this case. Therefore a mandatory injunction should be ordered requiring the defendants to lower the structures to the maximum levels allowed by the restrictive covenant.
[204] Miller [75] - [80].
[205] Miller [81] - [88].
[206] Miller [89].
His Honour granted both a mandatory injunction in relation to the past breach, requiring remediation, and a prohibitory injunction in relation to future breaches.[207]
[207] Miller [89], [91].
On appeal, the Court of Appeal summarised the principles relied on by Hall J in Miller and observed that the judge's formulation of the relevant legal principles was not challenged on appeal by the appellants:[208]
The judge held that the following legal principles were to be applied in relation to the exercise of judicial discretion to grant an injunction for breach of a restrictive covenant. The goal of the exercise of discretion is to produce a fair result: Shepherd Homes Ltd v Sandham [1971] Ch 340; (1970) 3 All ER 402. The judge recognised that the court must consider whether the plaintiff's injuries can be adequately compensated by an award of damages rather than the grant of an injunction: Wood v Conway Corporation(1914) 2 Ch 47. However, the normal remedy for a breach of a restrictive covenant is an injunction and the court's discretion to award damages in lieu should be exercised with caution: Leeds v Industrial Co‑operative Society Ltd v Slack [1924] AC 851. The judge noted that damages should be awarded only where the injury to the plaintiff's legal rights is small, is capable of being estimated in money terms, can be adequately compensated by a small money payment, and where it would be otherwise oppressive to the defendant to grant an injunction: Shelfer v City of London Electric Lighting Co (1895) 1 Ch 287. Although hardship to the defendant is a relevant discretionary factor, the issue is whether the hardship inflicted on the defendant by an injunction would be disproportionate to the benefit to be conferred on the plaintiff: Jessica Estates v Lennard [2007] NSWSC 1434. The judge also noted that the defendant's knowledge of the wrongful nature of his or her act is a relevant discretionary factor: Jaggard v Sawyer (1995) 1 WLR 269.
The judge's formulation of the relevant legal principles was not challenged on appeal by the appellants.
[208] Miller CA [17] - [18].
Counsel for the plaintiff invites the court to adopt the principles set out in Miller and Miller CA.
Counsel for the defendant did likewise, but also drew the court's attention to two further cases.
The first was the decision of the Court of Appeal (England and Wales) in Jaggard v Sawyer, an appeal of the decision of Jack J in the Weymouth County Court.[209] The facts were that in 1997 the defendants bought a house on a cul de sac. The defendant's house was situated on the opposite side of the cul de sac to that of the plaintiff. In 1998 the defendants purchased a plot of land contiguous with their property, without access to the cul de sac and lying parallel to it. Subsequently, they obtained planning permission to build a dwelling house on the plot and, in the belief that the cul de sac was a public road, they proposed that access should be provided by means of a driveway to be constructed over part of the garden of their existing property and by use of the cul de sac. The plaintiff threatened to bring proceedings for an injunction to restrain such use as constituting a breach of covenant and a trespass over her portion of the roadway. No such application was made initially but on 14 June 1989, when the building was at an advanced stage, the plaintiff began proceedings for an injunction. Thereafter the house was completed and occupied by the defendants for a short time before being let. At trial it was common ground that the cul de sac was a private roadway and, together with the driveway, the only means of access to the plot. Jack J found that the defendants' proposed use of the land would involve a continuing trespass and breach of covenant, that they had not acted in blatant and calculated disregard of the plaintiff's rights that they had known of, but failed to seek interlocutory injunctive relief. His Honour concluded that in all the circumstances it would be oppressive to the defendants to grant the injunction sought and that the plaintiff should be awarded damages in lieu. The amount awarded was a one ninth share of the total sum which the trial judge valued as the price the defendants might reasonably have been required to pay the residents of the cul de sac for release from the covenant and for a right of way.[210]
[209] Jaggard v Sawyer [1995] 1 WLR 269; 2 All ER 189 (Jaggard).
[210] Jaggard (269).
In declining to grant the injunction, the trial judge was particularly influenced by:[211]
the conduct of the plaintiff and of the defendants and their reasons for acting as they have, the failure of the plaintiff to apply for interlocutory relief, the particular nature of the trespass and of the relevant land, and the fact that if an injunction is granted No. 5A will have no access.
[211] Jaggard (275).
The Court of Appeal dismissed the appeal, upholding the reasoning adopted by the trial judge.
Lord Bingham noted that:[212]
(1)[The trial judge] regarded the injury to the plaintiffs right as small. …
(2)The judge considered the value of the injury to the plaintiffs right as capable of being estimated in money. …
(3)The judge held that the injury to the plaintiff's legal right was one which could be adequately compensated by a small money payment. I agree, and I do not think this conclusion can be faulted. …
(4)The judge concluded that in all the circumstances it would be oppressive to the defendants to grant the injunctions sought.
His Lordship further acknowledged that:[213]
[It] would weigh against a finding of oppression if the defendants had acted in blatant and calculated disregard of the plaintiff's rights, of which they were aware, but the judge held that this was not so, and the plaintiff's solicitors may be thought to have indicated that damages would be an acceptable remedy.
[212] Jaggard (282 - 283) (Lord Bingham).
[213] Jaggard (283) (Lord Bingham).
Lord Millet also pointed out that:[214]
The outcome of any particular case usually turns on the question: would it in all the circumstances be oppressive to the defendant to grant the injunction to which the plaintiff is prima facie entitled? Most of the cases in which the injunction has been refused are cases where the plaintiff has sought a mandatory injunction to pull down a building which infringes his right to light or which has been built in breach of a restrictive covenant. In such cases the court is faced with a fait accompli. The jurisdiction to grant a mandatory injunction in those circumstances cannot be doubted, but to grant it would subject the defendant to a loss out of all proportion to that which would be suffered by the plaintiff if it were refused, and would indeed deliver him to the plaintiff bound hand and foot to be subjected to any extortionate demands the plaintiff might make.
[214] Jaggard(288) (Millet LJ).
The second was the decision of the Supreme Court (UK) in Coventry v Lawrence.[215]That case concerned the activities conducted in a stadium that had been constructed on agricultural land. Planning permission had been obtained for it to be used for speedway racing and associated facilities. The stadium was also over time used for stock car racing, 'banger racing' and greyhound racing. Later on, to the rear of the stadium a motorcross track was constructed, which was used for both racing and practice. Around 20 years after the stadium was initially built, a Ms Lawrence purchased a bungalow adjacent to the stadium and motorcross track. Ms Lawrence complained about noise coming from events at the motorcross track. She commenced an action in nuisance against the operator, Mr Coventry. Some years later, Ms Lawrence's house suffered a serious fire and was rendered uninhabitable and was not rebuilt at the time of the proceedings.
[215] Coventry v Lawrence [2014] UKSC 13 (Coventry).
At first instance, Ms Lawrence succeeded in her claim for nuisance and was awarded damages. The judge also granted an injunction restraining Mr Coventry from carrying on activities which exceeded a specific noise level (with higher noise levels allowed on up to 12 weekends a year). The Court of Appeal reversed the first instance decision on the basis that no nuisance had been proven. The Supreme Court allowed the appeal, restoring the finding of nuisance and the injunction.[216] On appeal, Ms Lawrence sought damages in lieu of an injunction. The Supreme Court held that, having not raised this argument at first instance, it could not be raised on appeal. However, it could be argued before the trial judge pursuant to a liberty to apply in the context of an application that the injunction granted by the judge should be discharged, and damages awarded instead.[217]
[216] Coventry[133] - [148] (Lord Neuberger, with whom Lord Sumption, Lord Mance and Lord Clarke agreed, with some discussion on the principles to be applied going forwards).
[217] Coventry [150] - [151] (Lord Neuberger).
As to the approach to be adopted by a court when deciding whether to grant an injunction to restrain a nuisance from being committed, or whether to award damages instead, Lord Neuberger observed:[218]
Where a claimant has established that the defendant's activities constitute a nuisance, prima facie the remedy to which she is entitled (in addition to damages for past nuisance) is an injunction to restrain the defendant from committing such nuisance in the future; of course, the precise form of any injunction will depend very much on the facts of the particular case. However, ever since Lord Cairns' Act (the Chancery Amendment Act 1858 (21 & 22 Vict c 27)), the court has had power to award damages instead of an injunction in any case, including a case of nuisance - see now s 50 of the Senior Courts Act 1981. Where the court decides to refuse the claimant an injunction to restrain a nuisance, and instead awards her damages, such damages are conventionally based on the reduction in the value of the claimant's property as a result of the continuation of the nuisance. [T]his is clearly the appropriate basis for assessing damages, given that nuisance is a property-related tort and what constitutes a nuisance is judged by the standard of the ordinary reasonable person.
The question which arises is what, if any, principles govern the exercise of the court's jurisdiction to award damages instead of an injunction.
[218] Coventry [101] - [102].
His Lordship noted that the case which is 'probably most frequently cited' on the question is Shelfer v City of London Electric Lighting Co, (which was considered in Miller and Miller CA). His Lordship quoted the following passage from the judgement of A L Smith LJ:[219]
[A] person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the court to sanction his doing so by purchasing his neighbour's rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be. In such cases the well known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff's legal right has been invaded, and he is prima facie entitled to an injunction.
There are, however, cases in which this rule may be relaxed, and in which damages may be awarded in substitution. … In my opinion, it may be stated as a good working rule that -
(1)If the injury to the plaintiff's legal rights is small,
(2)And is one which is capable of being estimated in money,
(3)And is one which can be adequately compensated by a small money payment,
(4)And the case is one in which it would be oppressive to the defendant to grant an injunction - then damages in substitution for an injunction may be given.
[219] Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, 322 - 323 (Lord Smith); Coventry [103] (Lord Neuberger).
His Lordship then considered a number of subsequent cases which considered these principles. His Lordship's conclusions may be summarised in the following terms:
(a)the court's power to award damages in lieu of an injunction involves a classic exercise of discretion, which should not, as a matter of principle, be fettered;[220]
(b)the prima facie position is that an injunction should be granted, so the legal burden is on the defendant to show why it should not;[221]
(c)the approach to be adopted by a judge when being asked to award damages instead of an injunction should be much more flexible than an 'almost mechanical, application of A L Smith LJ's four tests' so as to be a fetter on the exercise of the court's discretion;[222]
(d)having said that, it would, in the absence of additional relevant circumstances pointing the other way, normally be right to refuse an injunction if those four tests were satisfied;[223]
(e)however, the fact that those tests are not all satisfied does not mean that an injunction should be granted;[224]
(f)an approach which involves damages being awarded only in 'very exceptional circumstances' is wrong in principles and may give rise to a serious risk of going wrong in practice;[225]
(g)a matter of practical fairness, each case is likely to be so fact‑sensitive that any firm guidance is likely to do more harm than good;[226]
(h)guidance can, however, be given as to what factors can, and cannot, be taken into account by a judge when deciding whether to exercise his discretion to award damages in lieu;[227]
(i)the outcome in each case will depend on the evidence and arguments;[228] and
(j)if it arises on the facts, the public interest will be a relevant factor.[229]
[220] Coventry [120].
[221] Coventry [121].
[222] Coventry [119], [123].
[223] Coventry [123].
[224] Coventry [123].
[225] Coventry [119].
[226] Coventry [120].
[227] Coventry [121].
[228] Coventry [122].
[229] Coventry [124].
And then as to the measure of damages:[230]
A final point which it is right to mention on this issue is the measure of damages, where a judge decides to award damages instead of an injunction. It seems to me at least arguable that, where a claimant has a prima facie right to an injunction to restrain a nuisance, and the court decides to award damages instead, those damages should not always be limited to the value of the consequent reduction in the value of the claimant's property. While double counting must be avoided, the damages might well, at least where it was appropriate, also include the loss of the claimant's ability to enforce her rights, which may often be assessed by reference to the benefit to the defendant of not suffering an injunction.
[230] Coventry [128].
Lord Sumption agreed with Lord Neuberger on the merits of the appeal, but added some observations on the discretion of the court to grant an injunction or damages, concluding:[231]
In my view, the decision in Shelfer is out of date, and it is unfortunate that it has been followed so recently and so slavishly. It was devised for a time in which England was much less crowded, when comparatively few people owned property, when conservation was only beginning to be a public issue, and when there was no general system of statutory development control. The whole jurisprudence in this area will need one day to be reviewed in this court. There is much to be said for the view that damages are ordinarily an adequate remedy for nuisance and that an injunction should not usually be granted in a case where it is likely that conflicting interests are engaged other than the parties' interests. In particular, it may well be that an injunction should as a matter of principle not be granted in a case where a use of land to which objection is taken requires and has received planning permission. However, at this stage, in the absence of argument on these points, I can do no more than identify them as calling for consideration in a case in which they arise.
[231] Coventry [161] (Lord Sumption).
Lord Mance also agreed with Lord Neuberger on the merits of the appeal, but not with the observation of Lord Sumption which I have just quoted:[232]
I would only add in relation to remedy that the right to enjoy one's home without disturbance is one which I would believe that many, indeed most, people value for reasons largely if not entirely independent of money. With reference to Lord Sumption's concluding paragraph, I would not therefore presently be persuaded by a view that 'damages are ordinarily an adequate remedy for nuisance' and that 'an injunction should not usually be granted in a case where it is likely that conflicting interests are engaged other than the parties' interests' - a suggested example of the latter being given as a case where a use of land has received planning permission. I would see this as putting the significance of planning permission and public benefit too high, in the context of the remedy to be afforded for a private nuisance. As already indicated, I agree with Lord Neuberger's nuanced approach.
[232] Coventry [168] (Lord Mance).
Lord Clarke agreed generally with the approach of Lord Neuberger.[233]
[233] Coventry [174] (Lord Clarke).
Lord Carnwath agreed with the approach of Lord Neuberger:[234]
… I agree with Lord Neuberger and the rest of the court that the opportunity should be taken to signal a move away from the strict criteria derived from Shelfer [1895] 1 Ch 287. This is particularly relevant to cases where an injunction would have serious consequences for third parties, such as employees of the defendant's business, or, in this case, members of the public using or enjoying the stadium. …
[234] Coventry [239] (Lord Carnwath).
For present purposes, I would make two observations from the decision in Coventry. The first is that the manner in which Hall J approached the question of the appropriate remedy in Miller reflects the approach set out by Lord Neuberger which I have summarised at [257]. His Honour described the dicta of the decision of A L Smith LJ in Shelfer which I have quoted at [259] as 'a good working rule', no higher.[235] The summary of principles by the Court of Appeal in Miller CA quoted at [245] is to the same effect.
[235] Miller [63].
The second is that the decision in Coventry was concerned with nuisance and, in particular a nuisance which had a public character to it. This is because the excessive noise constituting the nuisance impacted not only the property belonging to Ms Lawrence, but all the surrounding properties. Moreover, in a claim for nuisance, the limitation on use is imposed by the court. In the present case I am concerned with a restrictive covenant, being an instrument by which the registered proprietor of land agreed to be bound by certain restrictions limiting the development of the land. Further, the impact is limited to the owner of the Benefitted Land. There is no wider impact. These two distinctions are important to the exercise of the discretion regarding remedies in the present case.
11.3 Relevant factors aside from delay and acquiescence
The first factor which is relevant is the nature of a restrictive covenant. It protects the rights of the plaintiff, not the entitlement of the defendant to build the Pergola. As Hall J observed in Miller, an award of damages in lieu of an injunction would effectively license a breach of a restrictive covenant. There is also a public interest element or, to borrow from the criminal context, an element of general deterrence. If restrictive covenants protecting views are not routinely enforced by way of mandatory injunction, they cease to have any value. These characteristics mean that the prima facie position suggested by Lord Neuberger, that an injunction should be granted, meaning the legal burden is on the defendant to show why it should not, applies with somewhat more force in a restrictive covenant case than in a nuisance case.[236] This is a strong factor in favour of a mandatory injunction.
[236] Coventry [121] (Lord Neuberger).
The second is the extent to which the Pergola in fact interferes with the amenity of the Benefitted Land, in particular the view from the Benefitted Land to the Swan River.
Mr Ninkov gave evidence that when he returned to Perth on 1 September 2024, he was 'shocked' at the development which had occurred on the Burdened Land.[237] Other than that one reference he did not give any evidence going to the specific impact of the Works, in particular, the Pergola.
[237] ts 27.5.25, page 110.
Counsel for the plaintiff drew the court's attention to some photographs taken from the video of the View, which I have already mentioned at [164]. Counsel for the defendant invited the court to find that from the upstairs of the Benefitted Land, the Pergola can clearly be seen, but does not in fact impact the line of sight to the Swan River (see Annexure E to this decision) and from the downstairs veranda of the Benefitted Land, only a corner of the Pergola can be seen (see Annexure F to this decision).
Counsel for the plaintiff responded that the Pergola nonetheless interferes with the 'corridor of vision' which the Restrictive Covenant has specifically been intended to protect. It was up to Mr Ninkov to determine whether what was proposed was an acceptable imposition on this corridor of vision.
As I have found at [177], the purpose of cl 1(c) is to protect the entire 'visual corridor' from the Benefitted Land, over the Restricted Area, to the Swan River by imposing restrictions on developments below 13.87 m AHD. It does not just protect the actual views of the Swan River. Accordingly, I agree with the position of counsel for the plaintiff. The breach in the present case is exactly the type of breach which cl 1(c) was intended to address. This is a strong factor in favour of the grant of a mandatory injunction.
The third factor is whether the injury is one that can adequately be compensated by a small money payment. There is no evidence before the court as to the diminution in value of the Benefitted Land as a result of the interference with the line of sight to the Swan River. As was the case in Miller, this is not a case where the interference with the visual corridor is capable of being estimated in money terms. In any event, it is not one that could be adequately compensated by a small money payment. In the words of Lord Mance in Coventry, a view is something 'people value for reasons largely if not entirely independent of money'.[238] This is a strong factor in favour of a mandatory injunction.
[238] Coventry [168] (Lord Mance).
The fourth factor is the extent of Mr McKail's knowledge. The Restrictive Covenant is registered and the interest is recorded on the certificate of title. The Torrens system ensures that when Mr McKail purchased the Burdened Land he was, in effect, deemed to have been provided with the 'information necessary to comprehend the extent or state of the registered title to the land in question'.[239] I have set out his knowledge in s 4.6. In summary (relevantly):
(a)he in fact knew that there was a restrictive covenant over the land he was about to purchase;
(b)he believed that it was limited to the 13.87 m height restriction over the Restricted Area;
(c)he did not in fact believe that the Pergola was being constructed in breach of the Restrictive Covenant; and
(d)he did not obtain any advice to the effect that the Pergola was being constructed in compliance with the Restrictive Covenant.
From these facts, it cannot be said that Mr McKail knowingly breached the terms of the Restrictive Covenant in relation to the Pergola.
[239]Deguisa v Lynn [2020] HCA 39; 384 ALR 209; 268 CLR 638, 641 (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ).
Counsel for the plaintiff drew the court's attention to the following passages from the decision or the Court of Appeal in Mortimer v Bailey.[240] The first was from Lord Justice Peter Gibson:[241]
I would not characterise what occurred in this case as the respondents standing by while the extension was being built. I accept that they were slow to seek an interim injunction and left it far too late, and, as I have said, such delay is a relevant consideration in the exercise of discretion as to whether to grant a final injunction. But very shortly after work commenced, and with the completion of the extension still two months away, the appellants had been warned by the respondents that if the construction continued, proceedings would be brought against them. They knew when buying The Old Barn that they were doing so with the burden of the covenant. They chose to rely upon the advice of their legal adviser and to proceed with the construction. In so doing, they took a gamble that it was unreasonable for the respondents to have refused consent. They lost that gamble.
[240] Mortimer v Bailey [2004] EWCA CIV 1514 (Mortimer).
[241] Mortimer [35] (Lord Gibson).
The second was from the decision of Lord Justice Jacob:[242]
I would add only this. Where there is doubt as to whether a restrictive covenant applies or whether consent under a restrictive covenant is being unreasonably withheld, the prudent party will get the matter sorted out before starting to build, as could have been done in this case. If he takes a chance, it will require very strong circumstances where, if the chance having been taken and lost, an injunction will be withheld.
[242] Mortimer [41] (Lord Jacob).
However, neither of these observations reflect the facts which I have found at [272]. Mr McKail did not take a gamble in a case where he either knew that the Restrictive Covenant applied or there was some doubt as to that fact. He simply believed that it did not apply.
Counsel for the plaintiff submitted that this was a case like Miller in the sense that it was not one in which it could be said that the defendant acted openly and in good faith and through inexperience had not appreciated the problem of a restrictive covenant,[243] adding that the defendant has experience in renovating properties. In my view, the facts which I have summarised at [272] is a more accurate reflection of the evidence.
[243] Miller [45].
On balance, in my view, Mr McKail's knowledge is neutral to the exercise of the discretion, weighing neither in favour nor against the grant of a mandatory injunction.
The fifth factor is the relevance of the fact that Mr Ninkov did not seek interlocutory relief when he knew that the Works, of which he now complains, were being undertaken. Counsel for Mr McKail submits that this factor weighs against the grant of mandatory injunction at this stage. Council for the plaintiff submits that this factor is neutral as there was no need for an interlocutory injunction as Mr McKail stopped work once he was aware that litigation had commenced ([68]). I agree with plaintiff's position.
The sixth factor is Mr McKail's receipt of building approval from the relevant local government. This is an irrelevant consideration. Regulatory bodies have 'no role to play in ensuring that the restrictive covenant was complied with'.[244]
[244] Miller [38].
The seventh factor is the relevance of the Old Pergola. Having found that the Old Pergola did not in fact breach the Restrictive Covenant ([205]), the fact that it was on the Burdened Land for so long without objection has no relevance to whether a mandatory injunction should be granted in this case.
The eighth factor is the expense involved in both building and removing the Pergola. It cost Mr McKail $20,000 to build and will cost him $5,000 to demolish.
The present case is not one like Jaggard in which the court is faced with a 'fait accompli'. It is not a case where the effect of a mandatory injunction would be to require a building to be torn down or to leave a building without any means of physical access (see [252]). Rather, the removal of the Pergola will only give rise to a marginal loss of amenity on the Burdened Land.
In my view, the detriment to Mr McKail involved in removing the Pergola would not be disproportionate such as to justify the refusal of a mandatory injunction. The inconvenience suffered by him is a consequence of his own decisions in not giving any consideration to the operation of the Restrictive Covenant. The prudent and reasonable approach by someone in his situation would have been to have shown the plans to Mr Ninkov, engaged in a discussion as to whether or not the plans breached the Restrictive Covenant and, if there was an actual or potential breach, sought the prior consent of Mr Ninkov. Put slightly differently, but to the same effect, the case is not one in which it would be oppressive to Mr McKail to grant an injunction.
11.4 Delay
I have set out in s 4.7 Mr Ninkov's knowledge and intentions. The net result of that analysis is that:
(a)there was no specific complaint about the Pergola prior to the commencement of litigation ([117]);
(b)Mr Ninkov was not advised, and did not form the view, that the Pergola may have been in breach of the Restrictive Covenant before litigation was commenced ([118]); and
(c)the position which Mr Ninkov took that he was not going to make a complaint without first getting legal advice was reasonable ([111]).
So, although Mr Ninkov was aware of the Works being undertaken, he was not aware that the Works were being undertaken in breach of the Restrictive Covenant. This explains why no complaint was raised. However, it also means that the Mr McKail was not informed that the Pergola may be in breach of the Restrictive Covenant until, it appears, after the ligation was commenced.
In my view, there was no unreasonable delay on the part of Mr Ninkov in making a complaint, commencing or prosecuting proceedings in relation to the Pergola.
This is not a case in which Mr Ninkov has by word, action or inaction induced Mr McKail to believe that a breach of the Restrictive Covenant in relation to the Pergola was known by Mr Ninkov and accepted by him.
The absence of an earlier complaint did cause Mr McKail prejudice in the form of spending money to construct the Pergola. However, this is a factor which I have already brought to account in determining proportionality.
The issues relating to delay, in my view, fall far short of justifying a conclusion that it would be unjust in all the circumstances to grant an injunction.
11.5 Acquiescence
In regard to acquiescence, this is not a case in which Mr Ninkov has by his acts and omissions represented to Mr McKail that the Restrictive Covenant is not enforceable in relation to the Pergola and that he is therefore entitled to maintain the Pergola in breach of it. In no way can it be said that the situation in this case has become such that it would be dishonest or unconscionable for Mr Ninkov to continue to seek to enforce the covenant.
11.6Determination
The present case is on all fours with Miller. There has been a breach of the Restrictive Covenant by Mr McKail. The breach is not trivial nor is the detriment suffered by Mr Ninkov. The conduct of Mr McKail does not mitigate the breach or make equitable relief inappropriate. Whilst Mr McKail would suffer a detriment from the granting of a mandatory injunction, such detriment is not so disproportionate so as to make an injunction inappropriate. Damages are not a suitable alternative in the circumstances of this case. Therefore, a mandatory injunction should be ordered requiring Mr McKail to remove the Pergola. This is the fair and just result in the exercise of the court's discretion.
What final relief is appropriate?
The plaintiff is entitled to a mandatory injunction requiring the defendant to remove the Pergola. I will hear from the parties as to the form of the order. My preliminary view is that a time period of 60 days should be allowed.
The balance of the action should be dismissed.
I will hear from the parties as to costs. This can either be done by oral submissions when this judgment is delivered or on the papers following the filing of submissions and, if required, affidavits.
ANNEXURE A
ANNEXURE B
ANNEXURE C
ANNEXURE D
ANNEXURE E
ANNEXURE F
ANNEXURE G
ANNEXURE H
ANNEXURE I
ANNEXURE J
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OS
Associate to the Honourable Justice Gething
30 JUNE 2025
2
21
1