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Prowse v Johnstone

Prowse v Johnstone

Case [2015] VSC 621 11 November 2015

Restrictive Covenant

Adverse Possession

Legitimate Expectation

Property Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 2175

MAUREEN CARMEL PROWSE	Plaintiff
v
LILIAN MARY JOHNSTONE and others (according to the attached schedule)	Defendants

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATES OF HEARING:	19–20 May 2015
DATE OF JUDGMENT:	11 November 2015
CASE MAY BE CITED AS:	Prowse v Johnstone
MEDIUM NEUTRAL CITATION:	[2015] VSC 621

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REAL PROPERTY - Restrictive covenant – Transfer of land – Whether covenants in transfer of land was validly amended in 1912 to insert words of annexation – Proof of person making amendments – Legislative provision under which amendments made – Evidentiary inferences – Presumption of regularity – Whether valid restrictive covenant – Whether burden of covenant ran with the land – Transfer of Land Act 1890 (Vic) ss 55, 82, 83, 194, 195, 198, Transfer of Land Act 1958 (Vic) s 88, Property Law Act 1958 (Vic) s 79.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Morris QC and Ms L Hicks	Lukaitis Lawyers
For the Defendants	Mr S Horgan QC and Mr M Townsend	Russell Kennedy

SCHEDULE OF PARTIES

MAUREEN CARMEL PROWSE	Plaintiff
- and -
LILIAN MARY JOHNSTONE	Firstnamed Defendant
GEORGINA ANTHEA MCNAMARA	Secondnamed Defendant
MATTHEW PHILIP PRESTON	Thirdnamed Defendant
EMMA JANE PRESTON	Fourthnamed Defendant
JAMES ORMONDE LUCAS	Fifthnamed Defendant
ISOBEL CLARK LUCAS	Sixthnamed Defendant
MARK OLIVER SIMMONS	Seventhnamed Defendant
KATRINA MICHELLE ALLEN	Eighthnamed Defendant
WENDY PATRICIA KIMPTON	Ninthnamed Defendant
LORRAINE MARIA BOURKE	Tenthnamed Defendant
TALIA OLIVER	Eleventhnamed Defendant
DAVID HAMISH LAWRANCE OLIVER	Twelfthnamed Defendant
AMANDA O’DELL McDOUGALL	Thirteenthnamed Defendant
RANDY JAMES LAPORTE	Fourteenthnamed Defendant
ASTRIDA COOPER	Fifteenthnamed Defendant
ALASDAIR JOHN LEWARS MACDONALD	Sixteenthnamed Defendant
RHONDA CATHERINE MACDONALD	Seventeenthnamed Defendant
KATHERINE QUINCEROT	Eighteenthnamed Defendant
JAYNE ELIZABETH SIMONSON	Nineteenthnamed Defendant
NEIL KEVIN LAHY	Twentiethnamed Defendant
CATHERINE MARY LAHY	Twenty-firstnamed Defendant
PAUL SWEET	Twenty-secondnamed Defendant
SUE SWEET	Twenty-thirdnamed Defendant
MARK FLEMING	Twenty-fourthnamed Defendant
NICOLE FLEMING	Twenty-fifthnamed Defendant
ROBERT GEORGE MORRIS	Twenty-sixthnamed Defendant
ANGELA MORRIS	Twenty-seventhnamed Defendant
LAURENCE PATRICK EISENTRAGER	Twenty-eighthnamed Defendant

HIS HONOUR:

The plaintiff, Mrs Maureen Carmel Prowse, seeks orders in relation to a covenant that is recorded on the title to her property situated at 191-193 Wattletree Road, Malvern (‘the property’). She is the registered proprietor of that property. The property is part of the estate known as the Coonil Estate. When the Coonil Estate was subdivided, mainly between 1910 and 1915, covenants, including restrictive covenants, were contained in the transfers of the land.

More than a century after a covenant was included in the title to the plaintiff’s land, she seeks a declaration that it does not bind her land, on the ground that the words said to constitute a restrictive covenant were not validly inserted in the relevant transfer and, in any event, do not constitute a restrictive covenant.

A house was built on and remains on the property. The plaintiff and her late husband purchased the property in 1966. The land is part of the Coonil Estate in Wattletree Road, Malvern. The parent title 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 Prowse v Johnstone

Details

AGLC: Prowse v Johnstone [2015] VSC 621
Case: [2015] VSC 621
Decision Date: 11 November 2015

CaseChat Overview and Summary

The case of Prowse v Johnstone involved a dispute over a restrictive covenant on a parcel of land. The plaintiff, Prowse, sought to enforce a covenant that restricted the use of the land to residential purposes. The defendant, Johnstone, argued that the covenant was not validly created or annexed to the land in question. The matter was heard in the Supreme Court of Victoria. The central legal issues revolved around whether the restrictive covenant was validly created and if it ran with the land. Specifically, the court needed to determine whether the covenant was validly amended in 1912, and if the burden of the covenant could be enforced against the defendant.

The court examined the legislative framework under which the covenant was amended, focusing on the Transfer of Land Act 1890 (Vic) and the Transfer of Land Act 1958 (Vic). It considered whether the amendments were validly made and whether the person who made them had the authority to do so. The court also evaluated the evidentiary inferences and the presumption of regularity in the context of the legislative provisions. Ultimately, the court concluded that the covenant was validly created and amended. It found that the legislative framework provided sufficient authority for the amendments and that the burden of the covenant ran with the land, binding the defendant.

In reaching its decision, the court applied the principles of statutory interpretation and the presumption of regularity. It held that the amendments to the covenant were properly made under the relevant legislative provisions, and the burden of proof did not rest on the plaintiff to disprove the validity of the amendments. The court found that the restrictive covenant was valid and enforceable against the defendant, as the covenant was properly annexed to the land and the burden of the covenant ran with the land. The final orders of the court mandated that the defendant comply with the residential use restriction imposed by the covenant.

Orders