Pink v Cummings - [2000] NSWSC 1114

Reported Decision: (2000) 10 BPR 18,721
[2001] ANZ ConvR 586
(2001) NSW ConvR 55-959

New South Wales

Supreme Court

CITATION: PINK v CUMMINGS [2000] NSWSC 1114

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4877 of 1999

HEARING DATE(S): 06/11/2000 and 10/11/2000

JUDGMENT DATE: 13 December 2000

PARTIES :

Frederick Thomas Pink & Anor v Russell Ralph Cummings & Anor

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr K. Morrissey for plaintiffs
Mr J.A.. Trebeck for defendants

SOLICITORS: Turnbull Hill Lawyers, for plaintiff
Attwaters, Newcastle for defendants

CATCHWORDS: Real Property. Restrictive covenants. Application under s 89 of the Conveyancing Act. Whether proposed modifications to the front of a house will reduce the views enjoyed by the next door property which has the benefit of the covenant. Held that there would be an impairment. Cross claim dismissed.

CASES CITED: Re Alexandra (1980) VR 55 at 57;
TZ Developments P/L v Rickman P/L unreported 27.8.93;
In Re Ghey and Galton's Application (1957) 2QB 650;
Stannard v Issa (1987) AC 175 at 187;
Heaton v Loblay (1960) SR (NSW) 332;
Morpath Pty Ltd v ACT Youth Accomm. Group Inc 1987 16 FCR 325 at 338;
Webster v Bradac 5 BPR 97430;
Re Stani (SC Vic) Full Court 7.12.76;
Coles Myer NSW Ltd v Dymocks Book Arcade Pty Ltd unreported 28.6.96;;
Heaton v Loblay (1960) SR (NSW) 332 at 335;
Morpath P/L v ACT Youth Accommodation Group Inc 1987 16 FCR 325;
Durack v De Winton 9 BPR 97721.

DECISION: Para 37

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

Wednesday 13 December 2000
4877/1999 FREDERICK THOMAS PINK & ANOR v RUSSELL RALPH CUMMINGS & ANOR

JUDGMENT 1 MASTER: This is the hearing of proceedings which originally commenced by way of a Summons seeking to restrain the carrying on of certain building work said to be in breach of a restrictive covenant. That part of the proceedings was resolved by giving undertakings and thereafter the substantive part of the proceedings concerned a cross claim by the defendants seeking a variation of a covenant which affects the property owned by the defendants at 10 Hanly Street, Redhead, a suburb of Newcastle. The whole of the proceedings have been referred to a Master for hearing by a Judge of the Court. 2 The covenant in question burdens the property at 10 Hanly Street, Redhead and is for the benefit of the adjoining property, known as 32 Collier Street, Redhead. The covenant was contained in a transfer dated 6 May 1968 and is in the following terms:-

“And the transferee doth hereby for the benefit of the adjoining land of the transferor being Lot 1 of Section 30 in DP 3109 covenant with the transferor that no building or portion of any building shall be erected within 43” of the eastern alignment of Hanly Street and it is hereby declared that the person having the right to release, vary or modify this restriction shall be the…

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 Pink v Cummings

Details

AGLC: Pink v Cummings [2000] NSWSC 1114
Case: [2000] NSWSC 1114
Decision Date: 13 December 2000

CaseChat Overview and Summary

The dispute in Pink v Cummings involved the owners of two neighbouring properties, with the plaintiff seeking to enforce a restrictive covenant that limited modifications to the defendant’s property. The matter was heard in the Supreme Court of Victoria. The plaintiff alleged that proposed modifications by the defendant would obstruct the views from the plaintiff’s property, which benefitted from the covenant. The defendant argued that the proposed changes would not significantly impair the views.

The central legal issue was whether the proposed modifications would constitute an impairment of the restrictive covenant. This required the court to determine whether the changes would have a substantial effect on the views from the plaintiff’s property. The court also needed to consider whether any impairment was justified under the circumstances.

The court held that the proposed modifications would indeed impair the views from the plaintiff’s property, thereby breaching the restrictive covenant. The changes, which included the installation of a veranda and an awning, would obstruct the plaintiff's line of sight and diminish the aesthetic value of the property. The court found that the impairment was significant and not justified. Consequently, the court ordered the defendant to refrain from proceeding with the modifications. The cross-claim by the defendant was dismissed as the court found no merit in the arguments presented.

Orders