Ninkov v McKail

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

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

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

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