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Oostemeyer v Powell

Oostemeyer v Powell

Case [2016] VSC 491 17 August 2016

Restrictive Covenant

Modification of Covenant

Precedent

Substantially Injure

Property Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S CI 2015 05000

SHARON KIM OOSTEMEYER	Plaintiff
v
MALCOLM POWELL & OTHERS	Defendants

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JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25, 26 JULY 2016
DATE OF JUDGMENT:	17 AUGUST 2016
CASE MAY BE CITED AS:	OOSTEMEYER v POWELL & OTHERS
MEDIUM NEUTRAL CITATION:	[2016] VSC 491

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REAL PROPERTY – Restrictive covenant – Application for modification – Covenant restricting, amongst other things, the erection of more than one dwelling on the land – Proposed development involving subdivision and construction of a second dwelling on the land – Whether precedent already set by previous developments - Whether modification will not substantially injure the persons entitled to the benefit – Application refused – Applicable legal principles – Property Law Act1958 (Vic), s 84(1)(c).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Rimmer	Aughtersons Lawyers Pty Ltd
For the Defendants	In person	In person

HIS HONOUR:

The Application

The plaintiff is the registered proprietor of Lot 22 on Plan of Subdivision No 26169 being the land described in Certificate of Title Volume 7974 Folio 106 situated at 3 Karrala Court, Chirnside Park (‘the subject land’), which is depicted as Lot 22 on Plan 1.

The subject land is affected by the following restrictive covenant (‘the restrictive covenant’) contained in Instrument of Transfer No 2582765 dated 30 June 1952:

(a)No building shall be erected on the said Lot 22 other than one private dwelling house with the usual outbuildings or one church.
(b)Every such building outbuilding or church shall be of brick, brick-veneer, concrete or weatherboard construction.
(c)No such building outbuilding or church shall be constructed wholly or in part of second hand materials.
(d)Every such dwelling house or church shall exclusive of all verandas and outbuildings be of an area of not less than 1,000 square feet.

By originating motion filed 23 September 2015, as amended pursuant to leave given on 26 July 2016, the plaintiff seeks an order pursuant to s 84(1)(c) of the Property Law Act 1958 (Vic) (‘the Act’) that the restrictive covenant be modified by the addition of the following words:

However, nothing in this instrument prevents the construction of a second dwelling behind the existing dwelling on Lot 22 on Plan of Subdivision No 26169 substantially in accordance with the drawings SK-1 to SK-5 (inclusive) entitled “Proposed Residence at 3A Karrala Court, Lilydale” prepared by Bums Architecture of 6/163 Commercial Road, South Yarra 3141 in May 2016, copies of which are annexed to the Order made by the Honourable Associate Justice Riordan in the Supreme Court of Victoria Proceeding No. 2015 05000, subject to any amendment required by the Responsible Authority as a condition of planning approval for that dwelling.

Plan 1

The defendants

Malcolm Powell, the first defendant, is the registered proprietor of 10 Karrala Court, Chirnside Park, which is Lot 29 on Plan 1.

Mr John Tresidder, the second defendant, is a registered proprietor of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Oostemeyer v Powell

Details

AGLC: Oostemeyer v Powell [2016] VSC 491
Case: [2016] VSC 491
Decision Date: 17 AUGUST 2016

CaseChat Overview and Summary

The matter before the court was an application by Oostemeyer to modify a restrictive covenant on a parcel of land located in Victoria. Powell opposed the application. The dispute centred around a covenant restricting the number of dwellings that could be erected on the land, with the proposal to construct a second dwelling potentially breaching this covenant. Powell argued that allowing the modification would set a precedent for further developments and cause substantial injury to the beneficiaries of the covenant.

The court had to determine whether the precedent set by previous developments justified modifying the covenant and whether such modification would not substantially injure the persons entitled to the benefit of the covenant. The primary consideration was the language of the covenant itself and the effect of its modification on neighbouring properties and the original intent of the covenant.

The court found that the precedent set by previous developments did not warrant modification of the covenant. It held that allowing the proposed development would set a dangerous precedent for future developments, potentially undermining the original intent of the covenant. Furthermore, the court determined that modifying the covenant would substantially injure the persons entitled to its benefit, as it would alter the character of the area and impact neighbouring properties. Consequently, the application was refused.

The court's decision hinged on the interpretation of the restrictive covenant under the Property Law Act 1958 (Vic), section 84(1)(c), which governs the modification of restrictive covenants. The court's reasoning was that preserving the original intent and purpose of the covenant was paramount and that any modification must not cause substantial injury to the beneficiaries.

Orders